THE  LIBRARY 

OF 

THE  UNIVERSITY 

OE  CALIEORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 


.OR^VM** 


WOOD'S 


PRACTICE     EVIDENCE 


FOR  READY  USE  IN  THE  TRIAL  OF  CAUSES 


BY 


H.   G.  WOOD 

Author  of   "FIRE    INSURANCE,"    "LANDLORD   AND   TENANT," 

"STATUTE    OF    FRAUDS." 


SECOisrr)  edition 

BY 

ARTHUR  W.   BLAKEMORE 

Author  of  "ABOLITION   OF  GRADE  CROSSINGS." 


ALBANY,  N.  Y., 
BANKS  &  COMPANY. 

lOOG. 


T 
1906 


U)S5io^p 


Entered  according  to  Act  of  Congress,  in  the  year  one  thousand  eight  hundred 

and  eighty-six, 

By  banks  &  BROTHERS, 

In  the  ofl&ce  of  the  Librarian  of  Congress,  at  Washington. 


Copyright,    1906, 
By   banks    &   COMPANY. 


Preface  to  the  First  Edition. 


This  work,  upon  wHcli  I  have  been  engaged  at  odd  intervals 
for  the  last  eight  years,  is  intended  for  practical  use  in  the  trial 
of  cause^-a  sort  of  "handy"  book  for  reference  in  the  multi- 
farious questions  that  arise  in  the  trial  of  causes  as  to  the  admissi- 
bility of  certain  classes  of  evidence  and  to  the  settlement  of  which 
the  elementary  rules  do  not  always  afford  a  ready  solution.     As  ^ 
far  as  practicable  this  work  is  intended  to  remedy  the  inconven- 
ience resulting  from  this  condition.     The  work  is  not  intended  as 
an  elementary  treatise,  nor  is  it  a  mere  digest,  but  may  be  said  to 
be  intermediate  between  the  two.     It  gives  the  gist  of  the  leading 
cases,  whose  doctrine  is  well  and  firmly  established  both  as  to  the 
rules  and  the  exceptions  thereto,  and  I  believe  will  be  found  to  be 
reliable.     There  is  no  field  of  the  law  in  which  the  general  rules 
are  more  firmly  established  than  in  that  relating  to  the  law  of 
evidence;  but  at  the  same  time,  the  exceptions  to  these  rules  are  so 
numerous  that  there  is  no  department  of  the  law  in  which  more 
difficulty  is  experienced  in  ascertaining  where  the  rules  apply  than 
in  this     I  have  endeavored  in  a  large  measure  to  overcome  this 
difficulty,  and  have  drawn  largely  from  the  cases  and  the  text- 
book^especially  the  English  text-books— to  this  end.     Of  course 
I  have  not  been  able  to  cover  or  meet  every  possible  question,  but 
have  gone  as  far  as  the  best  class  of  cases  (English  and  American) 
warrant,  in  solving  them.     The  work  covers  a  field  which  is  not, 
except  to  a  limited  extent,  covered  by  the  elementary  or  other 
text-books,  and  I  trust  will  be  found  useful  as  a  guide,  and  asan 
authority,  in  the  trial  of  causes  in  which  these  questions  ansa 
The  index  is  very  full,  and  will  be  found  to  be  a  "  key     to  the 
points  covered. 

New  Yoek,  Ma/rch  22,  1886» 


Preface  to  the  Second  Edition, 


During  the  twenty  years  since  the  first  edition  of  this  hook  was 
given  to  the  legal  profession  the  courts  have  in  various  directions 
baen  busily  engaged  in  amplifying  and  extending  the  law  of  evi- 
dence to  meet  the  demands  of  modem  commercial  life.  This  de- 
velopment is  reflected  in  the  present  edition.  The  editor  has  in- 
serted thirteen  hundred  new  cases  of  this  period,  all  of  which  he 
has  personally  examined  and  all  of  which  contain  some  intelligent 
discussion  of  the  question  decided,  which  new  material^  made  it 
necessary  to  rewrite  entirely  some  sections  in  the  first  edition  and 
add  some  new  sections,  all  of  which  will  be  found  readily  available 
through  the  very  complete  index. 

The  various  divisions  of  the  hearsay  rule  are  in  most  part  well 
established  and  there  is  little  new  law  upon  them,  as  is  also  the 
case  with  the  law  of  admissions  and  of  public  documents.  The 
parol  evidence  rule  during  this  period  has  been  amplified  by  many 
decisions  which  evidence  the  efforts  of  the  courts  to  find  the  real  in- 
tention of  the  parties  to  a  contract  by  all  possible  aid  where  neces- 
sary outside  of  the  writing  itself.  There  is  a  noticeable  tendency 
in  the  law  to  admit  entries  mad©  fairly  in  the  usual  course  of  busi- 
ness, although  the  entrant  is  not  available,  as  will  be  noted  by 
reference  to  chapter  13  of  this  section.  An  interesting  legal  con- 
flict is  being  waged  concerning  the  admissibility  of  declarations  of 
a  party  as  part  of  the  res  gestae,  but  the  most  extensive  develop- 
ment of  the  law  of  evidence  during  this  period  has  been  under  the 
topic  "  judicial  notice,"  where  the  courts  are  tending  more  and 
more  to  shorten  trials  by  taking  notice  of  various  matters  of  com- 
mon or  judicial  knowledge. 
Boston,  April  2,  1906. 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

BEST    AND    SECONDABY    EVIDENCE. 

Page 

Sec.     1.  Best  evidence  rule.     What  is  primary  evidence 1 

2.  Rule  as  to  merely  collateral  matters 7 

3.  Rules  as  to  things  which  cannot  be  produced'  in  court 9 

4.  When  admissions  of  a  party  dispense  with  the  rule 11 

5.  Copies 13 

6.  Secondary  evidence,   what  is;  admissible   when 13 

7.  Loss  of   paper,   how  established 16 

8.  Search,    sufficiency   of 19 

9.  Requisites  of  notice  to  produce  paper  in  possession  of  the  ad- 

verse  party   24 

10.  When  notice  to  produce  is  unnecessary 27 

11.  Effect  of  notice  to  produce  papers 29 

12.  What  secondary  evidence  of  writings  sufficient 32 

CHAPTER  II. 

PAEOI.    EVIDENCE    AS    TO    WRITINGS. 

Sec.    13.  General    rule 37 

14.  Latent  ambiguities,  wliat  are,  rule  as  to 38 

15.  To   correct   mistaken   description    of   devisee 44 

16.  Party's  direct  statements  of   intention 46 

17.  To  apply  description  to  real  estate 49 

18.  Patent    ambiguity    or    indefiniteness 52 

19.  Conduct  of  parties  at  the  time  of  and  after  the  execution  of  a 

writing 55 

20.  To  explain  or  vary  legal  eflect  of  unambiguous  writing 59 

21.  Prior   and   contemporaneous    independent   agreements.        Incom- 

plete   contracts     64 

22.  Receipts,   releases   and   tickets 75 

23.  Surrounding    circumstances    79 

24.  To  prove  collateral  matters , 81 

(vll) 


vdii  Table  of  Contestts. 

Page. 
Sec.    25.  To  show  that  writing  never  legally  existed    (fraud,  illegality, 

escrow,  etc. ) 84 

26.  Consideration 00 

27  Mistake &3 

28  Waiver,  alteration  or  discharge  of  contract 98 

29.  To   show   warranty 100 

30.  To  show  that  writing  apparently  absolute  is  a  security  or  trust 

instrument 104 

31.  Agency  or  signature   in   representative  capacity 107 

32.  When  an  independent  contract  is  entered  into  as  an  inducement 

to  the  execution  of  the  principal  contract lOS 

33.  Several  writings  may  be  looked  at  to  determine  the  real  con- 

tract  and  intention  of  the  parties 109 

34.  As   to  third  parties 112 

35.  Judicial,  corporate  and  official  records 114 

36.  Assignments 117 

37.  Negotiable  instruments 118 

38.  Bills    of   lading 120 

39.  Bills  of  sale 121 

40.  Leases,  deeds  and  mortgages 123 

41.  Custom   or    usage 133 

A.  Parol  evidence  of  usage,  admissible  when 133 

B.  Qualities  and  proof  of  binding  usage 135 

C.  Need  not  necessarily  be  general 140 

D.  Must  be  established  by  instance  of  its  application 144 

E.  General  usage,  how  established,  by  one  witness 145 

F.  Mere  conflict  of  evidence  as  to,  does  not  defeat 149 

G.  Effect  of  local  or  trade  usage 151 

H.  Usage  in  particular   market 159 

I.  Usage  must  be  reasonable  and  legal 159 

J.  Usage  as  a  means  for  ascertaining  the  meaning  of  words  and 

phrases 2Q3 

K.  Rule  when  words  have  well  defined  meaning 167 

L.  Usage  may  add  incidents  to  contracts;   illustrations 170 

M.  Rule  when  ambiguity  is  created  by  parol  proof 174 

CHAPTER    III 

PRESUMPTIONS. 

Sec.  42.  In  general,    kinds  of I75 

43.  Conclusive   presumptions,  what  are 176 

44.  Estoppels    as    presumptions I79 

45.  Upon   whom   binding jgQ 

46.  Estoppel  against  estoppel,  effect  of;  how  may  be  made  available  180 

47.  Estoppels   in   pais.     Equitable  estoppels 181 


Table  of  Contents.  i^ 

Page. 

Sec.  48.  Disputable  presumptions  of  law 

49.  Continuance   of    fact 

50.  Continuance  of  life.     Effect  of  seven  years'  absence 18b 

51.  Survivorskip  in  common  disaster 

52.  Sanity    and    suicide 

53.  Ships  not  heard  from 1^* 

54.  Accounts •• 

,_     ,  195 

55.  Agency 

56.  Carriers,   negligence,   etc ^^^ 

57.  Character ^^^ 

58.  Fraud,   undue  influence   or   illegality 19^ 

59.  Alteration    of    instruments 202 

60.  Damages 

61.  Identity   of   name 

207 

62.  Abandonment.   .   .    

63.  Presumption  arising  from  possession  of  real  estate 208 

64.  Presumption   of   lost  grant;   adverse  possession 209 

65.  Validity   of   official   acts 215 

66.  Jurisdiction   of  courts 219 

67.  Regularity  of  appointment  of  officers 221 

68.  Official   sales    226 

69.  Payment 227 

70.  Title  to  property  presumed  from  possession 234 

71.  Miscellaneous    presumptions    236 

CHAPTER  IV. 


HEARSAY   EVIDENCE. 

Sec.  72.  General  rule 251 

73.  What  is  hearsay 252 

74.  Exceptions  to  the  rule 257 

CHAPTER  V. 

HEAESAY   TO    PROVE    GENERAL    OR  PUBLIC   RIGHTS. 

Sec.  75.  Admissible  to   prove  public   rights 259 

76.  Meaning  of  the  terms  "  public  "  and  "  general." 260 

77.  When  independent  proof  is  not  necessary 262 

78.  Application  of  the  exception 262 

'  79.  Instances  in  which  such  evidence  has  beeu  rejected 266 

8'^    Must  be  ante  litem  motam 268 


X  Table  of  Contents. 

CHAPTER  VI. 

HEARSAY  TO  PROVE  PEDIGREE  AND  RELATIONSHIP. 

Page. 
Seo.  81.  Pedigree,  how  may  be  proved 270 

82.  Evidence    should   come   from    member    of   family    or    undoubted 

source 271 

83.  What   is   pedigree 275 

84.  Old  documents,  inscriptions,  etc.,  admissible  to  establish 276 

85.  Entries  in  family  bibles  and  other  family  records 279 

86.  Declarations)  of   deceased  persons 280 

CHAPTER  VII 

HEARSAY ANCIENT   POSSESSIONS. 

Sec.   87.  Hearsay  admissible  to  prove,  when 282 

88.  Hearsay  not  admissible  to  prove  private  title 289 

89.  Perambulations 293 

90.  Old   documents   293 

91.  Manorial    documents     295 

92.  Maps 295 

93.  Verdicts,  etc 297 

94.  Judgments,  decrees  and  orders 299 

95.  Grounds  upon  which  these  rules  are  fomided 300 

96.  Position  of  parties  presumed  to  be  as   stated  in  ancient  docu- 

ments    302 

97.  Proof  of  modern  exercise  of  right 303 

CHAPTER   VIII. 

HEARSAY     TO     ESTABLISH    PRIVATE    BOUNDARIES. 

Sec.   98.  Admissible,   when 307 

99.  Declarations   of   deceased   surveyors 310 

100.  Of  persons  shown  to  have  been  in  a  situation  to  know 311 

101.  When  hearsay  is  not  admissible 313 

102.  Declarations  of  owners  against  interest 314 

CHAPTER  IX. 

DYING     DECLARATIONS. 

Sec.   103.  When  admissible 320 

104.  To  what  matters  admissible 324 

105.  Declarations  must  be  complete 324 

106.  Considerations  which  shoiild  control  as  to  admission  of 325 


Table  of  Contents.  xi 

CHAPTER  X. 

DECLARATIONS    BY    DECEASED    PERSONS    AGAINST    INTERlJST. 

Page. 
Sec.    107.  General  rule    327 

108.  Kinds   of   declarations   admitted 327 

109.  Conditions   precedent  to  the  admission  of 328 

110.  Entries  in  private  books,  etc 331 

111.  Admissibility  as  against  surety  of  declarations  of  principal...   332 

112.  Illustrations  of  the  application  of  this  exception 335 

113.  Person  making,  must  be  dead 335 

114.  Admissibility  of  collateral  matters  in  declaration  which  are  not 

against  interest  of  declarant 339 

115.  Distinctions   between   rules   as   to  entries   made  by  persons  in 

course  of  business  and  as  to  declarations  of  deceased  persons.  342 

CHAPTER  XI. 

memoranda WHEN    MAY    BE    EVIDENCE. 

Sec.    116.  How  may  be  used  as  evidence 345 

117.  Should  be  made  by  witness 354 

118.  May  be  used,  although  its  contents  would  not  be  admissible. .  .   355 

119.  Witness  need  not  have  recollection  independent   of 355 

120.  When  the  opposite  party  is  entitled  to  see  the  memorandum..   359 

121.  Memorandum  itself  only   admissible,   when 359 

122.  Memorandum  in  which  party  can  have  no  interest  to  falsify. .   360 

123.  Minutes  of  testimony  of  deceased  witnesses 360 

CHAPTER  XII. 

BOOKS  OF   CORPORATION. 

Sec.  124.  Entries  in  bank  books,  when  admissible 361 

125.  Books  of  corporations  generally,  rules  as  to  admission  of 305 

CHAPTER   XIII. 

ENTRIES  MADE  IN  COURSE  OF  BUSINESS;  SHOP  AND  ACCOUNT  BOOKS. 

Sec.    126.  Admissibility   of,  generally 377 

127.  Rule  when  better  evidence  exists 3S0 

128.  Rule  in   different   States 381 

129.  Effect  of  alterations,  etc. ;   of  what  things  they  may  be  used 

as  evidence    385 

130.  Of  what   things   they   are  not  evidence 385 

131.  What  are  proper  subjects  of  book  charge 387 

132.  Proof  of  and  manner  of  making  entries.     Transcriptions 391 


Xll 


Sec. 


Table  of  Contents. 

CHAPTER  XIV. 

kes    gestae. 

Page. 

133.  \Yhat  is  general  rule •  •  •   *"^ 

134.  Personal   injuries  and  their  cause 407 

135.  Statements  made  by  applicant  for  life  insurance 413 

136.  Statements  made  before  the  principal  fact.     Intent 413 

137.  Collateral  matters  connected  with  principal  fact 422 

138.  Declarations  as  to  title  and  possession  of  lands 435 

139.  Spontaneity  of  the  acts  and  declarations  essential;  what  is..   440 

140.  Acts  and  statements  after  the  principal  facts 448 

141.  Declarations    of    conspirators,    when    evidence    against    co-con- 

spirators    452 

142.  Statements  of  conspirators,  when  not  part  of  the  res  gestae 455 

143.  Writings  in  possession   of  conspirators   before  or  after  appre- 

hension    455 

CHAPTER  XV. 

TESTIMONY   IN   FORMER   TRIAL. 
Seo.   144.  In   general    457 

CHAPTER  XVI. 

ADMISSIONS. 

Seo.   145.  Admissions  of  parties  to  a  suit 459 

146.  Whole  admission  must  be  taken  together 475 

147.  Weight  to  be  given  to  admissions  or  declarations 483 

148.  Where  and  how  a  party  may  discredit  his  admissions 485 

149.  Parties  to  negotiable  paper  generally 487 

150.  Admissions    by   an   indorser 491 

151.  Admissions  made  by  a  former  owner  of  a  note 492 

152.  Admissions  of  persons  acting  together  illegally 496 

153.  Admissions   by   co-plaintiffs   or   co-defendants 497 

154.  Admissions  of  one  of  two  or  more  persons  united  in  interest.  .   498 

155.  Admissions  by  husband  or  wife 499 

156.  Admissions    by    attorneys 503 

157.  Declarations   and   admissions   of   agent 506 

158.  Knowledge  of  or  notice  to  agent,  affects  principal  when 520 

159.  Admissions   by   guardians,   nominal   parties  to   the  record,  ex- 

ecutors,  etc 527 

IGO.  Admissions  by  privies 530 

161.  Rule  as  to  privies  applicable  in  cases  of  personalty 533 

162.  Principal   and  surety 536 


Table  of  Contents.  xiii 

Page. 
Sec.  163.  Ofifers  of  compromise 537 

164.  How  admissions  should  be  weighed 541 

165.  Admissions   implied    from   conduct 543 

166.  Admissions    from    acquiescence 545 

167.  Conclusive  admissions    551 

168.  Effect  of  plea  of  general  issue,  etc 555 

169.  Omitting  to  traverse 560 

170.  New  assignment 560 

171.  Admissions  acted  upon  by  others  to  their  prejudice 562 

172.  Admissions  under  oath  in  deeds,  etc 567 

173.  Admissions  by  corporate  officers  and  agents 568 


CHAPTER   XVII. 

JUDICIAL,    NOTICE. 

Sec.   174.  In  general  .' 571 

175.  Public  and  private  statutes 572 

176.  Currency,  customs,  history,  political  and'  governmental  matters  576 

177.  Matters   of  common   knowledge 587 

178.  Statutes  and  common  law  of  other  States 589 

179.  As  to  judicial  records 595 

180.  Miscellaneous    matters    596 

181.  Pleading  of  statutes   relied  on 600 


CHAPTER  XVIII. 

BURDEN  OF  PROOF. 

Sec.   182.  General  object  of  evidence 605 

183.  Fraud 614 

184.  Burden  as  to  negative  propositions 616 

185.  Presumption  of  innocence 619 

186.  Burden  in  case  of  lost  notes,  etc 620 

187.  Who  is  to  begin 621 

188.  Who  begins  in  action  to  recover  lands 624 

189.  Right   to  reply. g25 


CHAPTER   XIX. 

PRIMA  FACIE  EVIDENCE. 

Sec.    190.  General   rule  as  to.     Illustrations 626 

191.  As  to  receipts,  signatures,  etc 631 


jjy  Table  of  Contents. 

CHiVPTER  XX. 

PUBLIC     DOCUMENTS.                                                PaQE. 
Sec.    192.  In  general   

193.  Legislative  journals ^^'* 

194.  Statutes ^^^ 

195.  Common  law  of  another  State  or  country 640 

196.  Records  of  births,  marriages  and  deaths 640 

197.  Ship    registers    ^^^ 

198.  Patents   for   inventions ^^^ 

199.  Patents  for   lands 649 

200.  Copies ^^^ 

201.  Official   certificates    655 

202.  Certificates  by  executive  officers 6G6 

203.  Certificates   by   clerks 668 

204.  Certificates    by    judicial    officers 669 

205.  Notarial  certificates    670 

206.  Marine  protests  and  surveys 672 

207.  Consular   certificates    673 

208.  Certificates  by  appraisers,  inspectors,  etc 674 

209.  Certificates  by  land  officers 675 

210.  Surveys   of  land 676 

211.  United  States  departmental   records 678 

212.  Weather   reports    679 

213.  Land  office  papers  and  records 679 

214.  Custom   house   records 681 

215.  State   land   office  papers 681 

216.  State   grants    682 

217.  State  records    683 

218.  Verdicts   and    interlocutory    matters 684 

219.  Judgments.     Proof   of 686 

220.  Proof  of  foreign  judgments 690 

221.  Between   what    parties    admissible ; 692 

222.  Judgment  conclusive   of    fact   recorded;    collateral   and   direct 

attack 697 

223.  Not  conclusive  on   immaterial  averments 700 

224.  Effect  of  judgment 700 

225.  Distinction  between  judgments  of  courts  of  exclusive  and  con- 

current jurisdiction    702 

226.  Judgments   in   rem 703 

227.  Proceedings   between    strangers 704 

228.  Rule  with  reference  to  real  and  nominal  parties 704 

229.  Rule  as  to  judgment  in  ejectment 704 

230.  When  the  parties  are  the  same,  but  not  suing  in  the  same  right  703 

231.  As  to  what  matters  a  judgment  concludes  a  party 707 

232.  Effect   of   foreign    judgments 711 

233.  Attack   on  foreign  judgments 718 


EVIDENCE. 


CHAPTER  I. 

Best  and  Secondary  Evidence. 

Section    1.  Best  evidence  rule.     What  is  primary  evidence? 

2.  Rule  as  to  merely  collateral  matters. 

3.  Rules  as  to  things  which  cannot  be  produced  in  court. 

4.  When  admissions  of  a  party  dispense  with  the  rule. 

5.  Copies. 

6.  Secondary  evidence,  what  is ;   admissible  when. 

7.  Loss  of  paper,  how  established. 

8.  Search,  sufficiency  of. 

9.  Requisites  of  notice  to  produce  paper  in  possession  of  the  adverse 

party. 

10.  When  notice  to  produce  is  unnecessary. 

11.  Effect  of  notice  to  produce  papers. 

12.  Wliat  secondary  evidence  of  writings  sufficient. 

Sec.  I.  Best  evidence  rule.    What  is  primary  evidence? 

The  so-called  best  evidence  rule  is  not  a  strict  rule  of  evidence 
but  rather  a  broad  general  principle  founded  on  the  two  considera- 
tions that  the  administration  of  justice  is  too  important  to  be  gov- 
erned bj  anything  but  the  very  best  obtainable  evidence,  and 
further,  that  the  failure  of  a  party  to  introduce  the  best  evidence 
at  his  command  is  justly  regarded  as  raising  the  suspicion  that  he 
is  not  dealing  in  good  faith  with  the  judicial  tribunal.  The  rule 
may  be  said  to  be  that  tJie  best,  or  highest  kind  of  evidence  which 
the  nature  of  the  case  admits  of,  must  he  given,  and  evidence  which 
presupposes  better  evidence  behind,  in  the  party's  possession  or 
power,  is  secondary  evidence.^     Thus,  where  a  contract  has  been 

^Tayloe   v.   Riggs,    1    Pet.    (U.    S.)  Primary    evidence,    as    stated   in    the 

391;     Colton  V.  Campbell,  3  Tex.  493;  text,    is    that    which    the    law    recog- 

Newsom    v.    Jackson,    2G    Ga.    241;  nizes   as   affording   the    greatest   cer- 

Haitt  V.  Moulton,  21  N.  H.  586;   The  tainty  of   the   fact   in   question,   and, 

Queen's    Case,   2    Br.    B.    287 ;   Union  until  it  is  shown  that  the  production 

Bank  v.  Ellis,  3  La.  An.  188;    Greely  of  this  class  of  evidence  is  out  of  the 

V.  Quimby,  22  N.  H.  335 :   Morton  v.  power   of   the   party,   no   other   proof 

White,  16  Me.  53.     For  a  learned  his-  of   the   fact   is,    in   general,    admissi- 

tory  and   analysis   of   the   "  best  evi-  ble.        All    evidence    falling    short    of 

dence  "  rule  see  Thayer's  Preliminary  this,   is   secondary,   and   the   question 

Treatise    on    Evidence,    pp.    484-507.  whether   evidence   is   primary  or   sec- 


Evidence. 


[Chap.  1 


reduced  to  writing,  the  writing  is  the  best  evidence  of  its  con- 
tents, and  must  he  produced,  unless  the  party  satisfies  the  court 
that  it  has  been  lost  or  destroyed,  or,  without  fault  on  his  part,  he 
is  unable  to  produce  it}  So,  where  an  auctioneer's  memorandum 
of  a  sale  becomes  important,  the  original  memorandum,  alone,  is 
insufficient  to  establish  the  sale,  and  a  mere  coj)y  thereof  is  not 
admissible.^ 

In  some  of  the  cases  it  is  held  that  a  copy  of  a 
message  sent  by  telegraph  is  not  competent  evidence,  unless  the 
original  dispatch,  left  at  the  transmitting  office,  is  shown  to  have- 
been  destroyed  or  lost,^  or  that  the  original,  and  the  office  from 
which  it  was  sent,  are  beyond  the  jurisdiction  of  the  court. ^  The 
current  authorities  seem  to  be  almost  uniformly  to  the  effect  that 
whether  the  telegram  filed  wuth  a  telegTaph  company  for  trans- 
mission, or  the  one  delivered  by  the  telegraph  company  to  the  per- 
son addressed,  after  transmission,  is  the  original,  for  the  purpose 
of  evidence,  depends  upon  whether  the  telegraph  company  is  the 
agent  of  the  person  sending  the  telegi'am,  or  of  him  to  whom  it  is 
sent;  that,  if  one  initiates  correspondence  by  telegraph,  he  selects 


ondary,  has  reference  to  the  nature 
of  the  case  in  the  abstract,  and  not 
to  the  peculiar  circumstances  luider 
which  the  party,  in  the  particular 
case,  may  be  placed.  It  is  a  dis- 
tinction of  law,  and  not  of  fact ;  re- 
ferring only  to  the  quality,  and  not 
to  the  strength  of  the  proof,  Richard- 
son V.  Milburn,  17  Md.  (37,  or,  as  was 
said  in  the  case  last  cited,  to  its 
grade  and  not  to  Us  conclusiveness. 

'Felton  v.  McDonald,  4  Dev.  (N. 
C.)  L.  406;  Wilson  v.  Young,  2  Cr. 
(U.  S.  C.  C.)  33;  Williams  v.  Jones, 
12  Ind.  561  ;  Brewton  v.  Driver,  13 
Ala.  826;  Fitzgerald  v.  Adams,  9 
Ga.  471.  Where  a  contract  has  been 
executed  in  duplicate,  each  part  is 
an  original.  Totten  v.  Buey,  57  Md. 
446.  The  rule  requiring  the  produc- 
tion of  the  best  evidence,  as  stated 
supra,  excludes  only  that  evidence 
which  itself  indicates  the  existence 
of  more  original  sources  of  informa- 
tion; and,  consequently,  where  there 
is  no  substitution  of  inferior  evidence, 
but  only  a  selection  of  weaker,  in- 
stead of  stronger  proofs,  the  rule  is 
not  infringed.  1  Phillips  on  Ev.  418; 
Taylor  on  Ev.  281. 


^  Davis  V.  Robertson,  Mill  (S.  C.) 
Const.  71. 

'Smith  v.  Easton,  54  Md.  138;  39 
Am.  Rep.  355.  This  must  be  under- 
stood, however,  as  applying  only  in 
cases  where  the  telegram  is  relied 
upon  to  sustain  the  action,  or  to  es- 
tablish a  substantial  fact,  and  in  such 
eases,  it  is  held  that  even  the  original 
is  not  admissible  unless  it  is  proved 
to  have  been  sent  by  the  party  by 
whom  it  purports  to  have  been,  and 
this  rule  has  been  held  to  apply  \yhere 
a  message  has  been  sent  to  a  party, 
and  a  reply  purporting  to  come  from 
him  has  been  received  in  due  course, 
the  courts  holding  that  the  same  rule 
in  such  cases  does  not  apply,  as  is 
held  in  relation  to  letters  received  in 
due  course  by  mail.  Hawley  v.  Whip- 
ple, 48  N.  H.  487.  The  message  must 
be  shown  to  have  been  sent  by  the 
party  from  whom  it  purports  to  have 
come,  either  by  proof  that  it  was  in 
his  handwriting,  or  that  it  was  sent 
by  his  direction  or  authority.  United 
States  V.  Babeock,  3  Dill."(U.  S.  C. 
C.)   576. 

^  Whilden  v.  Merchants,  &e.,  Bank^ 
64  Ala.  1. 


Sec.  1.]  Best  and  Secondary  EvmEosrcE.  8 

the  telegraph  company  as  his  agent,  which  agency  continues 
'throughout  the  correspondence,  and  a  telegram  delivered  to  the 
company  for  transmission  in  reply  to  the  one  first  sent  is  the  origi- 
nal, for  the  purpose  of  evidence.  So,  where  one  telegraphs  to  an- 
other asking  whether  he  will  pay  for  certain  medical  services  the 
reply  telegram  delivered  in  answer  to  the  telegraph  company  is 
the  original  for  evidentiary  purposes,  and  the  one  delivered  by  the 
telegTaph  company  to  the  first  sender  is  but  a  copy.^ 

It  is  often  difficult  to  say  what  is  primary  and  what  secondary 
evidence.  A  carbon  copy  of  a  letter  which  is  made  at  the  same 
time  and  by  the  same  imprint  of  type  with  the  letter  may  well  be 
regarded  as  a  duplicate  original  with  the  letter  itself,''  and  where 
-a  contract  is  executed  in  duplicate  a  party  who  has  lost  his  copy  is 
not  entitled  to  introduce  secondary  evidence  of  it  until  he  has  given 
his  opponent  notice  to  produce  his  copy,  as  both  copies  are  primary 
evidence.^  If  a  copy  of  a  letter  is  the  subject  matter  of  correspond- 
ence between  the  parties,  the  copy  and  not  the  original  is  admissi- 
ble as  primary  evidence.^  Where  meteorological  reports  are  made 
up  on  loose  sheets,  which  are  copied  in  a  letter  book  and  the  sheets 
are  sent  to  Washington,  and  the  letter  book  is  kept  as  the  record  of 
the  office,  the  book  and  not  the  sheets  was  held  to  be  the  original 
record.^^  A  title  by  deed  must  be  proved  by  the  production  of  the 
deed  itself  ;^^  but  where  a  deed  has  been  mutilated  or  where  a  plat 

«Bond  V.  Kurd    (Mont..   1904),  78  v.  Wood,  36   N.  Y.   307;   Dunning  v. 

Pac    579      Where  the  plaintiff  makes  Roberts,     35     Barb.      (N.     \.)    463. 

a  telearaphic  offer   to  the   defendant,  A      telegram      is       not       admissible 

to  Avhtch  the  latter  replies,  the  tele-  in      evidence      on      testimony      that 

eram   of  tlie   plaintiff  as   received   at  the     sendee     found     it    m    his   oflice 

its   destination    and   the   telegram   of  without    proof    that     it    came    froni 

the   defendant   as   he   delivered   it  to  the  telegraph  office,  or  who  wrote,  or 

the   company   are   the   best   evidence.  who  signed  it,  where,  when,  or  from 

Cobb  V.   Glenn   Boom   &  Lumber   Co.  whom  it  came,  except  as  appears  upon 

(W   Va     1905)    49  S.  E.  1005.    When  the  paper.     Reynolds  v.  Hinrichs,   16 

inesTnds   a   telegram   he   makes  the  S.   D.   r.02,   94   N.    W    694.      Bu     see 

company  his  agent  for  the  transmis-  Brownlee  v.  Reiner     (Cal.,   I90o),  82 

sion  and  delivery  of  his  communica-  P-/^"--*'                  c    n    p    r^   ,^    P    W 

tion  and  the  transcribed  message  ac-  'Chesapeake  &  O.  K  Co.  ^    F    W. 

tually  delivered  is   primary   evidence  Stock  &  Sons    (\a.,   190o),  51   S.   L. 

and  if   it  is  destroyed   all   other  evi-  161. 

dence    of    its    contents    is    secondary.  « Xorris  v.  Billingsley   (Fla.,  1904), 

TVIagie  v.  Herman,   50   Minn.   424.   52  37  So.  564. 

N.    W.    909,    36     Am.    St.    Rep.    660,  "  Simonds    v.    Cash    (Mich.,    1904), 

where    the     recollection     of    the     re-  99  N.  W.  754. 

ceiver   of  the   telegram   was    received  '"Chicago  &  E.   I.  R.   Co.  v.   Zapp, 

in  evidence.       See,  also,   Laviland  v.  209  111.  339,  70  N.  E.  R.  623 

Green     20   Wis.    431;   Durkee   v.    Vt.  "Alivon   v.    Furnival,    1    C,   M.   & 

Central  R.  R   Co.,  29  Vt.  127 ;  Trevor  R.  292.     So,  on  reference  to  a  deed  or 


4  Evidence.  [Chap.  1 

referred  to  in  the  deed  is  missing  from  the  deed  the  record  of  the 
deed  and  the  plat  are  admissible  to  prove  them  ;^^  and  generally  it 
may  be  said  that  the  contents  of  a  written  instrument  ivhich  is 
capable  of  being  produced  must  be  proved  by  tJie  instrwnent  itself, 
and  not  by  parol  evidence}^  There  are  three  classes  of  cases  to 
which  this  rule  applies :  First.  Those  instruments  ivhich  the  law 
requires  to  be  in  wnting;^*  second.  Those  contracts  which  the 
parties  have  reduced  to  writing;  and  third,  All  other  writings,  the 
existence  of  which  is  disputed,  and  which  are  material  either  to 
the  issue,  or  to  the  credit  of  a  witness. 

"When  a  writing  does  not  fall  under  either  of  these  heads,  there 
is  no  ground  for  its  excluding  oral  evidence ;  as,  if  a  written  com- 
munication is  accompanied  by  a  verbal  one  to  the  same  effect,  the 
verbal  communication  may  be  received  as  independent  evidence, 
but  not  to  prove  the  contents  of  the  writing,  or  as  a  substitute  for 
it.  It  is  upon  this  ground  that  the  fact  of  payment  may  be  shown 
by  parol,  although  a  receipt  in  writing  was  given  ;^^  or  that  a  verbal 
demand  for  goods  may  be  shown  in  an  action  of  trov.er,  although 
a  written  demand  was  made  at  the  same  time  ;^®  or  that  what  the 
testimony  given  by  a  witness  upon  a  trial  was,  may  be  shown  by 
parol,  although  the  judge  or  clerk  took  it  down  in  writing,  but 
which  the  witness  did  not  sign.^^ 

Before  a  deposition  can  be  admitted  in  evidence,  it  must  be 
shown  that  the  party  who  made  it  cannot  be  produced  by  the  party 
offering  it,  and  that  at  the  time  when  it  was  taken  a  cause  therefor, 
coming  within  the  j^rovision  of  the  statute  relating  thereto,  ex- 
isted '^^  and  in  order  to  render  a  deposition  taken  in  perpetuam 

any    other    attested    instrument,    its  signature  of  the  corporation' whether 

due    execution    must    in    general    be  or  not  it  was  in   answer  to  a  letter 

proved,  if  questioned,  by  the  produc-  written  by  the  witness.     Huber  Mfg. 

tion  of  the  attesting  witness,  if  alive,  Co.  v.  Claudel    (Kan.,  1905),  80  Pac. 

sane,   and  within   the   jurisdiction  of  960.       The  existence  of  a   municipal 

the  court,  and  can  be  found  by  dili-  ordinance  cannot  be  proved  by  parol, 

gent   inquiry.     Wright  v.   Tatham,    1  Cleveland  A.  &  C.  R.  Co.  v.  Workman, 

Ad.  &  El.   31.     See  post  §       ,  Proof  66  Ohio,  509.  64  N.  E.  R.  582. 

of  Attested  Instruments.  "Fitzgerald  v.  Adams.  9  Ga.  471. 

"Senterfeit  V.  Shealy  (S.  C,  1905),  "Jacob    v.    Lindsay,    1    East,    400. 

51  S.  E.  142.                 '  See  post    §     . 

"  The  Queen's  Case,  2  B.  &  B.  289 ;  "  Smith  v.  Young,  4  Camp.  439. 

Turner    v     Singleton,    2    A.    K.    Mar.  "  Jeans  v.  Wheeden,  2  M.  &  R.  486. 

(Ky.)    15;   Morrill  v.  Otis,  12  N.  H.  ^'Harvard    v.    Maale,    2    H.    &     J. 

466.        A    letter    from    a    corporation  (Md.)    249:   Dunn  v.  Dunn.   11   Mich, 

written  and  signed  on  the  typewriter  204;   Livermore  v.  Eddy,  30  Mo.  547; 

may  be  identified  by  a   statement  by  WethercU  v.  Patterson,  31  id.  458.  In 

the   witness   who    received    it   as   the  the  cases  cited  from  Missouri  it  was 


Sec.  1.] 


Best  and  Secondary  Evidence. 


admissible,  it  must  be  shown  that  the  person  making  it  is  dead, 
because  in  all  cases  the  oral  evidence  of  a  witness,  given  upon  the 
stand  in  the  presence  of  the  triers,  is  regarded  as  of  a  higher  kind 
than  that  given  by  way  of  deposition.  Bnt  a  deposition  taken  by 
one  party  and  filed  in  court  may  be  used  as  evidence  by  the  other 
party  as  a  matter  of  right,  in  the  absence  of  a  statute  to  the  con- 

The  rule  that  secondary  evidence  is  not  admissible  to  take  the 
place  of  a  writing  applies  io  notes/«  warrants,-  executions  returns 
on  executions,-  bills  of  sale,-  subscriptions  to  stock,  etc.  letters  of 
administration,^^  maps,^^  records,^^  mortgages,^«  deeds  of  gift,  let- 
ters,- telegrams,^^  receipts,-  deeds,-  and  indeed  any  and  all  writ- 
ings, the  contents  of  which  are  material  to  the  issue.  Where  deeds 
contracts,  etc.,  are  executed  in  duplicate  by  all  the  parties,  each  part 
is  treated  as  an  original,^^  but  where  each  part  is  executed  by  one 


held  that  where  the  cause  for  taking 
the  deposition  was,  that  the  witness 
was  about  to  leave  the  State  it  must 
be  shown  by  other  evidence  than  that 
contained  in  the  certificate  that  the 
witness  is  absent  from  the  State  at 
the  time  of  the  trial.   . 

i»  Wallace,  Muller  &  Co.  v.  Leber, 
69  N.  J.  312,  55  A.  475,  and  cases 
there  cited.  -.n^iN 

=">  Merrill  v.  Timbrell  ( Iowa,  1904 ) , 
98  N    W.  879. 

"  State  V.  Atherton,  16  N.  H.  203 ; 
United  States  v.  Wary,  1  Cr.  (U  S. 
C.  C.)  312;  Hackett  v.  Wing,  6  Allen 
(Mass.),  58. 

"  Swetser  v.  Drove,  19  Ala.  255. 

"Rand  v.  Hadlock,  6  N.  H.  514; 
McDade  v.  Mead,  18  Ala.  214. 

"Yarbrough    v.    Hudson,     19    Ala. 

653.  ^    , 

»=  Cincinnati  R.  R.  Co.  v.  Cochran, 

17  Ind.  516. 

'«  Smith  v.  Wilson,  17  Md.  460. 

"Pool  V.  Myers,  21  Miss.  466.^ 

"Thelluson  v.  Shedden,  2  N.  R. 
228;  Bogart  v.  Green,  8  Mo.  115; 
Graham  v.  OTallow,  3  id.  507.  But 
where  a  record,  although  required  by 
law,  has  not  been  made,  the  facts 
which  should  so  offer  may  be  proved 
by  parol.  Gillett  v.  Commissioners 
of  Lyon,  18  Kan.  410. 

=°6rd  V.  McKee,  5  Cal.   515. 

'"Andrews  v.  Hooper,  13  Mass.  472; 
Rains  v.  Prettyman,  29  Ga.  529. 


^'  Farrell  v.  Brennan.  32  INIo.  328 ; 
Kidd  V.  Crammell,  17  Ala.  648;  Guer- 
rin  V.  Hunt,  6  Minn.  375;  Halcombe 
V.  State,  28  Ga.  66. 

32  Williams  v.  Briekell,  37  Miss. 
682;  Matteson  v.  Mayes,  25  111.  591. 
But  see  Cairo,  &c.,  R.  R.  Co.  v.  Ma- 
honey,  82  111.  78,  in  which  it  was  held 
in  ail' action  by  a  surgeon  against  a 
railroad  company  for  treating  an  em- 
ployee, the  fact  of  the  injury  being 
proved,  that  it  might  be  shown  that 
the  station  agent  notified  the  super- 
intendent of  the  fact  by  telegram. 

2'  Hamlin  v.  Atkinson,  6  Rand. 
(Va. )  574;  Ashe  v.  De  Rasset,  8 
Jones   (N.  C),  L.  240. 

^*  Hanson  v.  Armstrong,  22  111.  442. 
Before  secondary  evidence  of  the  con- 
tents of  a  deed  can  be  given,  three 
facts  must  appear:  1st,  the  existence 
and  genuineness  of  the  original;  2d, 
its  loss;  and  3d,  evidence  that  the 
paper  offered  is  an  examined  or  sworn 
copy.  Oliver  v.  Parsons,  30  Ga.  391. 
But,  as  a  deed  is  not  a  written  evi- 
dence of  the  contract  between  the  ven- 
dor and  vendee,  but  rather  a  per- 
formance of  the  vendor's  obligation 
under  the  contract,  it  may  be  shown 
by  parol  what  the  contract  in  fact 
was.  Trayer  v.  Reeder,  45  Iowa,  272; 
Mason  v.  Buchanan,  62   Ala.   110. 

3^  Calling  V.  Tremeck,  6  B.  &  C.  398 ; 
Brown  v.  Woodman,  6  C.  &  P.  206. 


6  Evidence.  [Chap.  1 

party  only,  each  counterpart  is  alternately  the  best  evidence  as 
against  the  party  sealing  it,  and  those  in  privity  with  hira,^^  and 
secondary  evidence  may  be  given  as  to  the  contents  of  the  other 
part.^^  While,  where  the  law  requires  that  a  certain  writing  shall 
be  recorded,  the  record  is  the  best  evidence  of  the  facts  recited 
therein,  yet,  until  it  is  recorded,  the  writing  itself  is  admissible,^^ 
and  this  is  also  the  case  where  the  statute  does  not  require  that  a 
writing  shall  be  recorded,  or  where  it  is  refused  because  of  in- 
formalities. Thus  the  statute  made  no  provision  that  the  action 
of  a  school  district  upon  the  question  of  borrowing  money  should 
be  recorded  or  that  the  record  should  be  the  only  primary  evidence 
on  the  question  or  its  results,  and  it  was  held  that  there  might  be 
oral  primary  evidence  thereon.^®  But  where  the  statute  requires 
that  certain  instruments  or  matters  shall  be  recorded  and  provides 
that  such  records  shall  be  evidence  of  the  facts  contained  therein, 
parol  evidence  is  not  admissible  to  prove  the  facts  stated  in  the 
record.^'' 

The  owner  of  goods  destroyed  by  fire  may  be  allowed  to  give  to 
the  jury  an  estimate  of  his  total  purchases  since  he  occupied  the 
location,  and  his  annual  sales  from  the  same  date.  An  owner  of  a 
stock  of  goods  is  often  unable  to  produce  the  best  and  most  correct 
evidence  as  to  the  value  of  the  goods  and  he  can  only  be  required  to 
prove  their  value  by  the  best  evidence  obtainable."  On  the  ques- 
tion of  the  amount  of  grain  a  certain  party  has  on  hand,  his  books 
are  the  best  evidence,  and  the  testimony  of  an  auditor  of  the  op- 
posite party  employed  to  examine  the  books  is  incompetent  without 
accounting  for  the  absence  of  the  books.*^ 

The  best  evidence  of  the  amount  of  real  property  in  a  taxing 
district  may  be  the  order  of  the  board  creating  the  district,  and 
the  best  evidence  of  its  assessment  is  the  assessment  roll  of  the 
district,  and  not  the  tax  roll  of  the  town  in  which  the  district  lies.'*^ 

"Hall  V.  Ball,  3  M.  &  G.  42;  Doe  "Montpelier  Savin^rs  Bank  &  Trust 

V.  Ross,  7  M.  &  W.  102.  Co.  v.   School   Dist.   No.   5,    115   Wis. 

»"  Munn  &  Godbald,  3  Bino:.  292.  622,  92   N.   W.  439.     The  assessment 

"  Randall  v.  Preston,  52  Vt.  198.  roll  in  California  when  completed  and 

'"  Board  of  Education  v.  Loft,  7  111.  certified    by    the     assessor     and     the 

App.  571.  board  of  supervisors  is  the  only  evi- 

^''Beaudeau  v.  Cape  Girardeau,  71  dence  of  his  acts  and  intentions  and 

Mo.  392.  so  is  the  only  evidence  of  the  date  of 

*'  Norfolk  &  W.  Ry.  Co.  v.   Briggs,  the   assessment.     Allen    v.    McKay   & 

103  Va.  105,  48  S.  E.  521.  Co.,  139  Cal.  72  Pac.  713,  94. 

«  Bartiett  v.  Wheeler,  195  111.  445, 
63  N.  E.  R.   1G9. 


Sec.  2.]  Best  AND  Secondary  EviDE^^CE.  7 

Evidence  may  be  admitted  against  a  party,  though  illegally 
taken  from  him.  So  evidence  obtained  through  misuse  of  a  search 
warrant,  or  the  use  of  one  illegally  issued,  is  admissible  against 
him  from  whom  it  is  taken.^^ 

Sec.  2.  Rule  as  to  merely  Collateral  Matters. 

The  rule,  as  stated  in  reference  to  the  production  of  written 
communicaitions  or  agreements,  has  no  application  when  they 
are  merely  collateral  to  the  issue.  This  is  the  case  when  parol  evi- 
dence relates  to  matters  distinct  from  a  written  contract  or  instru- 
ment, although  the  same  fact  could  be  proved  or  disproved  by  the 
writing.^  Thus,  while  an  action  to  recover  for  extra  work  done 
under  a  written  contract,  and  relating  to  the  matters  emhraced  in 
the  contract,  cannot  be  maintained  without  the  production  of  the 
written  contract  f'  yet  if  an  entirely  separate  order  is  given  for  the 
extras,  then  the  production  of  the  written  contract  is  not  neces- 
sary,^ and  parol  evidence  of  the  order  and  of  the  performance  of 
the  work  is  primary,  because  the  ground  of  action  does  not  rest 
upon  the  written  contract,  but  upon  the  implied  contract  which 
arises  from  the  order  to  perform  the  work.  But  to  make,  parol  evi- 
dence admissible  in  such  cases,  it  must  refer  to  a  subject  distinct 
from  the  written  contract.  Thus,  payment  of  contracts,  and  of 
judments  even,  may  be  proved  by  parol,  although  there  may  be 
written  or  even  record  evidence  of  the  fact.*  So,  too,  the  ap- 
pointment of  an  agent  may  be  shown  by  parol,  even  though  his  ap- 

"  Adams   v.   New  York,    192   U.   S.  222;   Keene  v.  Mead,  3   Pit.    (U.   S.) 

585,   24   S.   Ct.   372;    Leggatt  v.   Tol-  7;   Page  v.  Einstein,  7  Jones   (N.  C.) 

lervey,   14  East,  302;   Commonwealth  L.    147.     AS'«c/i   evidence  is  admissible 

V.  Tibbetts,  157  Mass.  519;   Chastang  to  establish  the  fact  of  payment,  but 

V.  State,  83  Ala.  29 ;   State  v.  Flynn,  not  to  show  that  a  receipt  was  given, 

36  N.  H.  64;   State  v.  Pomeroy,   130  or  that  an  indorsement  of  the  amount 

Mo.   489;   Trask   v.    The    People.    151  was   made   upon   a   note   or   upon    an 

111.  523;     contra.    State    v.    Sheridan  execution.     French  v.  Frazier,  7  J.  J. 

(Iowa),  96  N.  W.  730;  Blum  v.  State,  Mar.    (Ky.)   425.     So  the  payment  of 

94  Md.  375;   State  v.  Slamon,  73  Vt.  taxes   may    be    shown   by   parol,    and 

212,  50  A.   1097.     See,  also,   Boyd  v.  the   production   of   the   record   is   not 

United  States,  116  U.  S.  616.     '  necessary.       Davis  v.  Hare,   82   Ark. 

^Shiels  V.  Stark,  14  Ga.  529.  386;   Dennett  v.   Crocker,   8   Me.   239 

=  Buxton  v.   Cornish,    12   M.   &   W.  Adams   v.  Beale,   19   Iowa,   61.     Pay- 

426 ;   Vincent  v.  Cole,  M.  &  M.  257.  ment  may  be  proved  by  parol  to  have 

'  Reed  v.  B'atte,  M.  &  M.  84.  been  made  in  promissory  notes,  with- 

*  Planters'  Bank  v.  Borland,  5  Ala.  out     the     production     of     the     notes. 

531;     Kingsbury  v.  Moses,  45  N.  H.  Daniels  v.  Johnson,  29  Ga,  207. 


8  Evidence.  [Chap.  1 

pointment  is  in  writing;^  but  the  extent  of  his  powers,  as  conr 
ferred  by  the  written  appointment,  can  only  be  shown  by  the  pro- 
duction of  the  writing  itself  f  althongh  it  may  be  shown  by  parol 
that  he  did  certain  acts  as  agent  which  were  ratified  by  his  princi- 
pal, for  the  purpose  of  showing  that  he  had  authority  to  do  a  cer- 
tain act  as  such  agent.^  Where  the  question  is  of  the  existence  of  a 
quarantine,  it  can  be  shown  by  the  testimony  of  a  witness  who  per- 
sonally knew  of  its  enforcement,  without  proof  of  the  ordinance 
authorizing  it.^ 

So  the  fact  of  birth,  marriage,  death  or  burial  may  be  proved  by 
parol,  although  a  narrative  or  memorandum  of  the  event  has  been 
entered  in  registers  which  the  law  requires  to  be  kept.^  The  rule 
is,  that  where  the  narrative  of  an  extrinsic  fact  has  been  com- 
mitted to  writing,  the  fact  may  nevertheless  be  proved  by  parol. 
Thus,  the  fact  that  a  receipt  for  money  has  been  given  will  not 
exclude  parol  proof  of  its  payment.^"  So,  Avhere  an  oral  and  writ- 
ten notice  to  the  same  effect  is  served  upon  a  party,  the  written 
notice  need  not  be  produced,  unless  the  law  makes  a  written  notice 
imperative  ;^^  and  the  same  is  true  Avhere  there  is  an  oral  admission 
of  a  debt  and  a  written  promise  to  pay.^^  Where  there  is  a  written 
demise,  oral  evidence  of  occupancy  by  the  tenant,  under  the  lease,, 
may  be  given  ;^^  but  the  terms  of  the  tenancy,  as  the  amount  of 

MYhitfield  v.   Brand,   16  M.   &  W.  of  the  fact  to  be  proved,  and,  while 

282.  it  may  be  a  convenient  mode  of  proof, 

°  Parke,  B.,  in  Whitfield  v.  Brand,  cannot  exclude  other  evidence.  Evans. 

ante.  v.  Morgan,  ante. 

'Concord  v.  Concord  Bank,   16  N.  '"  Rambert  v.  Cohen,  4  Esp.  213. 

H.  26.  "  Smith    v.    Young,    1    Camp.   ,439. 

'  Mitchiner  v.  Western  Union  Tele-  And    where  the  notice  is  merely  col- 
graph  Co.   (S.  C,  1905),  50  S.  E.  190.  lateral  to  the  issue,  it  may  be  proved 

"  Owings  V.   Wyant,   1    H.   &   McH.  by   parol,   although    it    was   given   in 

(Md.)      393;   Com.     v.     Norcross,     9  waiting.     Polly  v.  McCall,  1  Ala.  Sel. 

Mass.  492;   Evans  v.  Morgan,  2  C.  &  Cas.   246;   see,'  also.   Kelly  v.  Taylor, 

S.  453;   Birt  v.  Barlow,  1  Doug.  172;  23  Cal.  11.     This  rule  rests  upon  the 

Nixon    V.    Brown,    4    Blackf.     (Ind. )  ground  that  there  are  two  independ- 

157:   Morris  v.  Miller,  1  W.  Bl.  632;  ent  sources  of  evidence,  and  therefore 

St.  Devereux  v.  Much  Dew  Church,  1  that  the  party  may  resort  to  either; 

id.  367.     The  record  or  registry  of  a  but  it  must  be  remembered  that  the 

marriage  is  not  the  ^'  best  evidence  "  rule  only  permits  the  party  to  show 

of  it,  but  the  marriage  may  be  proved  what  the  verbal  notice  wasj  and  does 

by  testimony  of  parties  present  with-  not    permit    him    to    show   what    the 

out  production  of  the  record.     Rhode  written  notice  contained. 

Island  Hospital  Trust  Co.   v.   Thorn-  "  Singleton  v.   Barrett,    2    C.   &    S. 

dike,   24   R.   I.    105,   52   A.   873,   876.  369. 

The  reason  for  this  is,  that  the  con-  "  Rex  v.   Holy  Trinity,    7   B.   &   C- 

tents  of  the  register  is  nothing  more  611;      Guitard  v.   Stoddard.    16   How. 

than    a   collateral   or   subsequent   me-  (U.   S. )    494;   Hammon  v.  Sexton,  69 

morial  of  the  fact,  and  forms  no  part  Ind.  37. 


Sec.  3.]  Best  and  Secondaky  Evidence.  9 

rent,  duration  of  the  term,  etc.,  can  only  be  shown  by^  the  lease 
itself.^'^  And  the  same  is  also  true  where  proof  is  required  to  be 
made  as  to  the  person  under  whom  the  premises  were  occupied.^^ 
As  between  third  persons  and  the  members  of  a  firm,  the  fact  of 
partnership  may  be  established  by  parol,  although  there  exists  a 
deed  of  partnership/®  So  parol  evidence  is  admissible  to  show  that 
a  person  who  took  the  acknowledgment  of  a  deed  of  real  estate,  was 
at  the  time  a  justice  of  the  peace,  although  the  certificate  does  not 
state  the  fact,^^  and  generally,  parol  proof  is  admissible  to  prove 
that  a  person  has  notoriously  acted  as  a  public  officer,  for  the  pur- 
pose of  establishing  his  official  character  without  producing  his 
commission. ^^  Parol  evidence  is  admissible  to  show  at  what  time  a 
certain  railroad  train  is  due  at  a  certain  station,  although  the  com- 
pany has  issued  a  printed  time  table  fixing  the  time  of  arrival/* 
So,  although  a  vessel  was  cleared  at  the  custom  house,  and  her 
clearance  is  in  writing,  parol  evidence  is  admissible  to  show  her 
destination.^** 

Sec.  3.  Rules  as  to  Things  which  cannot  be  produced  in  Court. 

Inscriptions  on  monuments,  tombstones,  walls,  surveyors'  marks 
,  upon  trees,  or  notices  affixed  to  boards,  and  other  immovables  may 
be  proved  by  parol. ^  This  is  upon  the  ground  that  the  production 
of  primary  evidence  is  physically  impossible,  and  as  public  con- 
venience requires  that  such  evidence  should  be  received,  and  stands 
upon  the  same  ground  that  copies  of  entries  in  the  books  of  the 
Bank  of  England  are  admitted.  The  books  of  that  bank  being  of 
great  public  concern  to  all  of  the  national  creditors,  and  as  the 
removal  of  them  would  be  so  inconvenient,  it  was  held  by  Lord 

"Strother    v.    Bau,    5    Bing.    136;  '» Chicago,  &c.,  K.  R.  Co.  v.  George, 

Rex.   V.   Merthyr-Tydvil,    1   B.   &  Ad.  19  111.  510. 

29 ;     Augustein    v.    Challis,    1    Exch.  ""  Hadden  v.  People,  25  N.  Y.  373. 

279.  ^  Bartholomew  v.   Stephens,  8  C.  & 

'^Doe  V.  Harvey,  8  Bing.  289.    But  P.    728;      Rex   v.    Fursey,   6    id.    84; 

contra,  see  Augustein  v.  Challis,  ante.  Coyle  v.  Cole,  6  C.  &  P.   357;   Tracy 

"Alderson  v.  Clay,  1  Starkie,  405.  Peerage  Case,  10  CI.  &  F.  164;  Saver 

"State    V.    McNa'llv,    34   Me.    210;  v.  Glossop,  2  Exch.  409  n;    Mortimer 

Rhoades   v.    Selin,    4 "  Wash.    (U.    S.)  v.  M'Callan,   6  M.  &  W.   68;   Senney 

715;      Bank   of   U.   S.   v.   Benning,   4  v.  Wade,  7  Sim.  595.     It  must  be  re- 

Cr.  (U.  S.  C.  C.)  81;  Shults  v.  Moore,  membered,  however,  that  in  the  case 

1   McLean    (U.    S.   C.   C),   520.     See  of  notices  so  affixed  to  walls,  etc.,  it 

post,  §  221.  must   appear   that   the  document  was 

^*  Jacobs  v.  United  States,  1  Brock.  affixed  to  the  freehold  and  could  not 

(U.  S.  C.  C.)   520.  easily  be  removed,  and  if  it  is  shown 


10 


Evidence, 


[Chap.  1 


Mansfield^  that  copies  of  entries  therein  might  be  received,  and 
that  principle  has  been  adopted  in  England  in  a  variety  of  cases 
since  without  question.^  But  copies  of  the  journals  of  the  House 
of  Commons  were  rejected  by  Lord  Mansfield^  upon  the  ground 
that  no  such  inconvenience  would  attend  their  removal,  and  the 
same  has  been  held  in  later  cases.^  The  rule  may  be  said  to  be  that 
where  hooks,  some  of  the  contents  of  which  it  is  desirable  to  prove, 
are  of  great  public  concern,  and  their  removal  would  be  productive 
of  great  public  inconvenience,  copies  of  them  may  be  received  in 
evidence.  This  has  been  held  in  reference  to  the  books  of  the 
Customs  and  Excise.® 

PhotogTaphs  may  be  admitted  on  proof  of  their  correctness,^  as, 


to  have  merely  been  fixed  to  the  wall 
of  a  building  by  a  nail  or  other  con- 
trivance to  hold  it  in  place,  notice  to 
produce  it  must  be  given  before  sec- 
ondary evidence  of  its  contents  can 
be  received.  Jones  v.  Tarleton,  9  M. 
&  W.  675.  The  same  rule  applies  to 
documents  deposited  in  a  foreign 
country  when  the  laws  or  estab- 
lished usages  of  such  country  will 
not  permit  its  removal,  because  in 
such  cases,  as  in  the  case  of  mural 
inscriptions,  etc.,  their  production  by 
the  partv  is  physicallv  impossible. 
Alivon  v.'Furnival,  1  C.,'M.  &  R.  277. 
In  the  case  of  mural  inscriptions, 
their  value  as  evidence  depends  al- 
most entirely  upon  the  authority 
under  which  they  were  made,  and  the 
distance  of  time  between  their  erec- 
tion and  the  event  they  commemorate. 
Atheney  Peerage,  Pr.  Min.  4.5.  And 
the  ease  with  wflich  such  evidence  CLn 
be  manufactured  renders  the  strict- 
est scrutiny  necessary  to  prevent  im- 
position. 

^  Rex.  V.  Gordon,  Doug.  593  n; 
LjTich  V.  Clerk,  3  Salk.  154;  Marsh 
V.  Calnett,  2  Esp.  665.  The  same 
rule  prevails  as  to  the  books  of  cus- 
tom houses.  Rex.  v.  King,  27  R. 
234;   Fuller  v.   Fitch,   Carth.   346. 

'  Lord  Abinger,  C.  B.,  in  Mortimer 
V.  M'Callan,  6  M.  &  W.  67. 

*  In  Rex  V.  Gordon,  ante. 

"See  29  St.  Trials,  685,  where 
printed  copies  of  such  journals  were 
rejected. 

•Rex.  V.  King,  2  T.  R.  234;  Fuller 
V.  Fitch,  Carth.  346.  See,  also,  post, 
§  201,  as  to  admissibility  of  certified 


copies  of  public  documents.  "  It 
was  formerly,"  says  Lord  Abinger, 
C.  B.,  in  Mortimer  v.  M'Callan,  6  M. 
&  W.  68,  "  the  practice  to  produce 
them,  but  after  some  consideration  it 
was  thought  that  the  '  public  incon- 
venience was  so  great,  that  it  has  be- 
come every  day's  practice  in  this 
and  other  courts,  to  allow  copies  of 
those  books  to  be  received  in  evidence. 
That  goes  upon-  the  general  principle 
of  not  removing  books  of  general  con- 
cernment. Then  does  not  that  prin- 
ciple apply  in  all  such  cases?  I  think 
a  case  has  been  aptly  put  by  my 
Brother  Alderson.  that  if  a  writing 
were  on  a  wall,  might  you  not  give 
evidence  of  the  character  of  the  hand- 
writing, as  probable  evidence  of  who 
wrote  it,  without  producing  the  wall 
in  court?  Suppose  a  man,  instead  of 
printing  a  libel  in  the  usual  way, 
were  to  write  it  on  the  dead  walls  of 
the  metropolis,  is  it  to  be  said  that 
he  cannot  be  punished  because  you 
cannot  produce  the  wall  in  court? 
May  you  not,  in  such  a  case,  prove 
his  handwriting?  Nor  is  this  case 
altogether  imaginary — I  would  men- 
tion a  case  which  occurred  very  early 
in  my  professional  life,  where  a  man 
was  convicted  of  writing  a  libel  on 
the  wall  of  the  Liverpool  jail.  In 
that  case  the  handwriting  of  the 
party  was  proved,  and  he  was  con- 
victed." See,  also,  post.  §  201,  as  to 
admissibility  of  certified  copies  of 
public  documents. 

"Martin  v.   Moore,  99  Md.  41,   57 
A.  671. 


Sec.  4.]  Best  and  Secondary  Evidence.  11 

for  example,  photogi'aplis  of  an  injured  party  just  before  and 
just  after  an  accident  which  is  the  foundation  of  suit.*  So  x-ray 
photographs  are  admissible  on  proper  proof  of  their  accuracy  as 
showing  things  which  cannot  otherwise  be  presented  to  the 
court,  although  it  is  admitted  they  are  not  infallible.^ 

It  is  not  essential  to  the  admissiblity  of  a  diagram,  drawing  or 
picture  of  a  thing  proper  to  be  described  to  a  jury,  that  it  should 
bave  been  prepared  by  the  witness  testifying.  It  is  admissible 
after  evidence  that  it  is  a  correct  representation  of  the  thing  sought 
to  be  described,^"  and  even  a  rough  sketch,  though  inaccurate,  may 
be  used  in  examination  or  argument  as  an  illustration  to  aid  the 
jury,  but  will  not  be  admitted  in  evidence. ^^  The  results  of  ex- 
periments should  not  be  admitted  in  evidence  when  made  under 
conditions  dissimilar  to  those  of  the  matter  in  question,  although 
under  conditions  more  favorable  to  the  party  objecting  to  the  ex- 
periments than  were  the  conditions  under  which  the  matter  in 
question  took  place.^^  Evidence  of  experiments  as  to  the  swinging 
of  a  scaffold  which  was  not  substantially  in  the  same  position  as  it 
was  when  the  accident  happened  two  years  previously  is  clearly 
irrelevant.^^  Where  one  party^  in  cross-examination  or  otherwise, 
introduces  part  of  a  document  in  evidence,  his  opponent  is  entitled 
to  have  the  whole  put  in.^^ 

Sec.  4.  When  admissions  ot  a  party  dispense  with  the  rule. 

In  England,  a  tacit  exception  to  the  rule  that  oral  testimony 
cannot  be  substituted  for  any  writing,  is  made  in  favor  of  the 

'  Davis  V.  Seaboard  A.  L.  Ky,  Co.,  competency  of  the  person  taking  it  or 

136  N.  C.  115,  48  S.  E.  591.  the  condition  of  the  apparatus,  if  it 

"Miller  v.  Minturn  (Ark.),  83  S.W.  is  shown  that  it  fairly  represents  the 

918.     An    X-ray   photograph   may   be  object     photographed.        Carlson     v. 

proved  by  testimony  of  an  expert 'that  Benton    (Xeb.,  1902),  92  N.  W.  600; 

he  took  and  developed  the  picture  and  contra,  Bruce  v.   Beal    (Tenn.),  41  S. 

that  it  was  an  accurate  and  correct  W.  445. 

representation.     Chicago    J.    Electric  ^°  Koon   v.   Southern   Ry.,   69   S.   C. 

Ry.  Co.  V.  Spence,  213  111.  220,  72  N.  101,  48  S.  E.  80. 

E.  796.     While  a  picture  produced  by  "  Lake  Street  EI.  R.  Co.  v.  Burgess, 

an  X-ray  cannot  be  verified  as  a  true  200  111.  628.  66  N.  E.  R.  215. 

representation   of  the   subject   in   the  ^-  Ha'lverson  v.  Beattle  Electric  Co., 

same  way  that  a  picture  taken  by  a  35    Wash.    600,    77    Pac.    1058,    106 L 

camera   can  be,  yet  it  should  be  ad-  Experiments    in    running   an    electric 

mitted  if  properly  taken.     De   Forge  car  around  a  curve 

v.  N.  Y.,  etc.,  R.  R.,  178  Mass.  59,  59  '^Decatur   Car   Wheel    &   Manufac- 

N.  E.  069,  86  Am.  St.  Rep.  404 ;  Bruce  turing  Co.  v.  Mehaffy,   128  Ala.  242 

V  Beall,  99  Tenn.  303,  41  S.  W.  445.  29   So.   696. 

An  X-ray  photograph  may  be  admis-  "  Phillips  v.  Town  of  Scales  Mound, 

sible  in  evidence  without  proof  of  the  195  111.  353,  63  N.  E.  R.  180. 


12  Evidence.  [Chap.  1 

parol  admissions  of  a  party  to  the  record  and  of  his  acts  amount- 
ing to  admissions,  and  such  admissions  are  received  as  primary 
evidence,  although  they  relate  to  the  contents  of  a  deed  or  other 
instrument  which  are  directly  in  issue/  and  this  is  also  the  rule 
in  Massachusetts.2  But  in  New  York  it  has  been  held,  that  the  ad- 
missions of  a  party  to  the  record  can  only  be  resorted  to  as  evi- 
dence, where  direct  parol  testimony  of  the  facts  thus  sought  to  be 
proved,  would  be  admissible,  and  consequently  that  they  cannot  be 
received  for  the  purpose  of  proving  matters  of  record,  nor  the  con- 
tents of  a  written  instrument,  except  in  those  cases  where  a  ground 
has  been  laid  for  the  reception  of  secondary  evidence.^  And  al- 
though, in  that  State,  the  execution  of  a  mere  attested  contract  in 
writing  may  be  proved  in  the  first  instance  by  such  admissions,* 
yet  such  is  not  the  case  with  regard  to  the  execution  of  an  instru- 
ment under  seal,  unless  where  a  legal  excuse  has  been  given  for 
the  failure  to  produce  the  subscribing  witness.^  But  on  this  point 
the  law  is  the  same  in  England,  since,  while  it  appears  from  the 
case  cited^  that  admissions  by  a  party  to  the  record  are  there  re- 
garded as  primary,  and  not  as  secondary  evidence  of  the  contents 
of  a  written  instrument,  it  has,  notwithstanding,  been  held  that  an 
acknowledgment  under  oath,  by  an  answer  in  Chancery,  will  not 
suffice  to  prove  the  execution,  without  accounting  for  the  absence 
of  a  witness  by  whom  it  has  been  attested.'^  It  is,  however,  obvious 
that  further  proof  may  be  waived,  by  an  admission  made  for  that 
purpose  in  court;  and  it  has  been  held  in  Kentucky^  that  a  party 
to  an  instrument  might,  in  all  cases,  prove  its  execution  by  himself. 
In  Illinois  it  is  held  that  admissions  of  a  defendant  do  not  obviate 
the  necessity  of  primary  evidence  of  a  written  libel,  and  open 
the  road  to  secondary  evidence,  where  the  libel  is  not  produced  or 
its  absence  accounted  for.^ 

'Slatteree   v.   Pooley,   6   M.    &  W.  *  Hall  v.   Phelps,  2  John.    (N.  Y.) 

664;   Newhall  v.  Holt,  6  id.  662.  451. 

'Loomis     V.     Woodham,     8     Gray  =^  Fox  v.  Kiel,  3  John.   (N.  Y.)   477; 

(Mass.),   557;      Smith   v.    Palmer,   6  Henry   v.   Bishop,   2    Wend.    (N.   Y.) 

Cush.    (Mass.)    513.  575;   Hollenbeck    v.    Fleming,    6    Hill 

'The   Welland   Canal   Co.  v.   Hath-  (N.  Y.)    306. 

away,  8  Wend.    (N.  Y.)    480;  Jenner  °  Slatteree  v.  Pooley,  ante. 

V    j'oliffe,  6  John.    (N.  Y.)    5;     Has-  'Call  v.  Dunning,  4  East,  53. 

brouck   V.   Baker,    10   id.   248.        See,  '  Smith  v.  Maro,  7  J.  J.  Mar.  445. 

also,  Jamison  v.  Conwav,  10  111.  227;  °  Prussmg.  v.   Jackson,  208   111.   85, 

Mason  v    Park,  4  id.  522;  Threadgill  69  N.  E.  R.,  771. 
,v.  White,  11  Ired.  (N.  C.)  591. 


Sees.  5,  6.]  Best  and  Secondary  Evidence.  13 

Sec.  5.  Copies. 

Copies  of  writings,  however  accurate,  in  the  absence  of  a  statute 
making  them  primary  evidence,  are  merely  secondary  evidence, 
and  are  not  admissible  unless  a  proper  ground  for  their  admission 
as  such  has  been  laid,^'^  and  this  rule  applies  when  it  becomes  im- 
portant to  prove  the  contents  of  a  manuscript  which  has  been 
printed.  The  printed  copy  is  not  admissible  unless  a  proper  foun- 
dation for  its  admission  has  been  laid  ;^^  so  as  to  letter-press 
copies,^^  and  to  copies  taken  by  a  copying  machine.^^  But  when  the 
foundation  has  been  laid  for  the  admission  of  a  printed  copy,  all 
printed  copies  struck  off  in  one  common  impression  are  admissi- 
ble." 

Sec.  6.  Secondary  Evidence,  what  is;  admissible  when. 

Secondary  evidence  is  admitted  in  all  cases  where  the  principle 
w^hich  excludes  it,  to  aid  the  supposed  existence  of  better  evidence 
behind,  which  it  is  within  the  power  of  the  party  to  produce,  does 
not  apply ;  and  the  party  desiring  to  make  use  of  it,  may  prove  that 
better  evidence  cannot  be  obtained  by  him.^ 

By  the  civil  law,  when  documents  or  private  writings  had  been 
lost  by  inevitable  accident,  any  person  having  occasion  to  use  them 
as  evidence,  was  permitted  to  do  so.  The  mere  fact  of  loss,  how- 
ever, was  not  enough,  it  was  also  necessary  to  be  showu  that  the 
loss  was  the  result  of  an  inevitable  accident.  "  For  instance,"  says 
Porthier,  781,  "  if  in  the  case  of  a  fire,  or  the  pillage  of  my  house, 
I  had  lost  my  papers,  among  which  were  the  notes  of  my  debtors, 
to  whom  I  had  lent  money,  or  the  acquittances  for  sums  which 

^"Munson  v.  Blain,  15  Ind.  242;  of  merchandise  without  showing  the 
Lungsford  v.  Smith,  12  Gratt.  (Va.)  loss  of  the  originals.  Haas  v.  Chubb, 
554;  Morrill  v.  Foster,  32  N.  H.  358;  67  Kan.  787,  74  Pae.  230. 
Creed  v.  White,  1 1  Humph.  ( Teiin. )  "  Smith  v.  Moorehead  ]Mfg.  Co.,  23 
549;  Benton  v.  Craig,  '?  Mo.  198;  Minn.  141 ;  Nodin  v.  Murray,  3  Camp. 
Chambers  v.  Hunt,  22  N.  Y.  L.  552 ;  228.  Press  copies  of  letters  are  ad- 
Marshall  V.  Harvey,  9  Gill  (Md.)  missible  against  a  party  if  they  pur- 
251;  Perkins  v.  Ermel,  2  Kan.  3^.5;  port  to  have  been  written  by  him,  and 
Redman  v.  Green,  3  Med.  (N.  C.)  are  found  in  his  possession,  and  ap- 
Ed.  54;  Boynton  v.  Kees,  8  Pick.  pear  to  be  in  his  handwriting,  and  the 
(Mass.)  329;  Bowman  v.  Smith,  1  originals  cannot  be  procured.  Com. 
Strobh.  (S.  G.)  246;  Carr  v.  Carr,  20  v.  Jeffries,  7  Allen  (Mass.),  548;  see. 
Mo.  408;  Patton  v.  Ranibo,  20  Ala.  also.  Com.  v.  Eastman,  1  Cush. 
485.     See  post,  §       ,  Copies.  (Mass.)   189,  where  such  evidence  was 

"  Rex  V.   Watson,  32  How.   St.  Tr.  admitted  without  objection.    See  ante, 

82.  p.  — . 

^-  Press  copies  of  railroad  way  bills  "  Rex  v.   Watson,   ante. 

are  not  admissible  to  prove  delivery  ^  Rainy  v.  Bravo,  L.  R,  4  C.  P.  287. 


14  Evidence.  [Chap.  1 

I  had  paid  to  my  creditors;  whatever  the  amount  of  such  notes 
or  acquittances  might  be,  I  ought  to  be  allowed  to  give  parol  evi- 
dence of  the  sums  which  I  had  lent  or  paid,  because  it  is  hy  an 
vnforeseen  accident,  and  w^ithout  my  fault  that  I  have  lost  the' 
notes  or  acquittances,  which  would  have  furnished  me  with  written 
evidence."  By  owr  law,  however,  parol  proof  of  the  contents  of 
written  instruments  may  be  given  upon  proof  of  their  loss,  from 
whatever  cause,  whether  inevitable  accident  or  sheer  carelessness, 
or  the  voluntary  acts  of  the  party,  provided  proof  is  first  made  that 
diligent,  but  unavailing,  search  has  been  made  for  them  in  the 
place  where  they  would  be  most  likely  to  be  found,  and  the  evi- 
dence of  loss  and  search  is  such  as  to  make  it  apparent  that  parol 
evidence  is  the  best  evidence  in  the  party's  possession,  or  in  his 
power  to  produce.^  The  contents  of  a  paper  voluntarily  destroyed 
by  a  party  may,  after  proof  of  its  destruction,  be  shown  by  parol  f 
hut  he  must  repel  every  inference  of  a  fraudulent  design  in  its 
destruction,  or  such  evidence  will  be  rejected,*  when  offered  either 
by  him  or  his  privies.^  When  the  loss  of  the  original  is  established, 
its  contents  may  be  proved  by  the  next  best  evidence  attainable, 
and,  if  no  better  evidence  exists,  by  parol.*'  So,  too,  when  a  written 
instrument  that  becomes  material  to  be  used  in  evidence  is  beyond 
the  jurisdiction  of  the  court,  verbal  evidence  of  its  contents  may  be 
given." 

'Greeley  v.  Quimbv,  22  N.  H.  335;  Riggs  v.  Taylor,  9  Wheat.  (U.  S.) 
Williams  V.  Jones,  12  Ind.  561 ;  New-  483;  Orne  v.  Cook,  31  111.  238; 
som  V.  Jackson,  26  Ga.  241;  Morton  Adams  v.  Guice,  30  Miss.  397;  Dow- 
\.  White,  16  Me.  53;  Conway  v.  State  ney  v.  Logan,  12  B.  Mon.  (Ky.)  386. 
Bank,  13  Ark.  48;  Mariner  v.  Saun-  Moannes  v.  Bennett,  5  Allen 
ders,  10  111.  113;  Reddington  v.  Gil-  (Mass.),  169;  Blake  v.  Fash,  44  111. 
man,  1  Bosw.  (N.  Y. )  235;  Holmes  302.  When  a  party  destroys  an  in- 
V.  Marden,  12  Pick.  (Mass.)  169;  strument  at  a  time  when  none  of  the 
Sanders  v.  Sanders,  24  Ind.  133;  Per-  parties  had  reason  to  think  it  neces- 
kins  V.  Ernel,  2  Kan.  325;  Chambers  sary  to  preserve  it  and  there  is  no 
V.  Hunt,  22  N.  J.  552;  Hussey  v.  suspicion  of  fraud,  secondary  evidence 
Roquemore,  27  Ala.  281 ;  Creed  v.  of  the  instrument  is  admissible.  Davis 
White,  11  Humph.  (Tenn.)  549;  v.  Teachout.  126  Mich.  135,  85  N.  W. 
Nicholson  v.  Hilliard.  2  Murph.  (N.  475.  86  Am.  St.  Rep.  531. 
C.)  270;  Waller  v.  School  Dist.,  22  ^  Both  the  grantee  and  those  claim- 
Conn.  326;  Steamboat  v.  Young,  3  ing  under  him  are  estopped  to  put  in 
Iowa,  268;  State  v.  Gemmell.  1  secondary  evidence  of  a  deed  volun- 
Houst.  (Del.)  9;  Smith  v.  Steele,  1  tarilv  destroyed  by  him.  Potter  v. 
H.  &  M.  (Md.)  419;  Flvnn  v.  Mc-  Adams,  125  Mo.  118,  28  S.  W.  490,  46 
Gonnigle,  9  W.  &  S.  (Penn.)  79;  Am.  St.  Rep.  478. 
Tucker  v.  Bradley,  33  Vt.  324;  Pool  ''Granger  v.  Warrington,  8  111.  299; 
V.  Myers,  21  Miss.  466;  Bogart  y.  Cotton  v.  Campbell,  3  Te,  493;  Gree- 
Green,  8  Mo.  115;  Ord  v.  McKee,  5  ley  v.  Quimby,  an^eyNewsom  v.  Jack- 
Cal.    515;   Diener   v.    Diener,   5    Wis.  son,  ante. 

'People    v.    Dennis,  4    Mich.    609;  'Forrest    v.    Forrest,    6    Duer    (N. 

Y.),  102;   Ralph  v.  Brown,  3  W.  &  S. 


Sec.  6.] 


Best  and  Secondary  Evidence. 


15 


If  the  paper  writing  is  one  which  the  party  himself  should  have 
in  his  possession,  before  he  can  be  permitted  to  put  in  secondary 
evidence  of  its  contents,  he  must  prove  either  its  loss  or  destruction, 
or  its  non-production  must  be  satisfactorily  accounted  for.®  With 
respect  to  paper  writings,  proof  of  their  contents  may  be  made  by 
secondary  evidence :  1st,  Where  the  original  writing  is  beyond  tJie 
jurisdiction  of  the  courts  or  is  lost  or  destroyed ;^^  2d,  Where  its 
production  is  physically  impossihle,  or  highly  inconvenient /^  3d, 
Where  it  is  in  the  hands  of  the  opposite  party,  ivho,  upon  proper 
notice,  refuses  or  neglects  to  produce  itj^^  4th,  Where  it  is  in  the 
possession  of  a  third  person,  who  is  not  compellahle  hy  law  to  pro- 
duce it  and  he,  being  called  as  a  witness  with  subpoena  duces 
tecum,  relies  upon  his  right  to  withhold  itj^^  5th,  Where  there  is 
a  strong  presumption  of  laiv  in  favor  of  the  existence  of  the  fact 
which  the  writing  could  be  used  to  sustain j^'^  6th,   Where  the 


(Ponn.)  395;  Shorter  v.  Sliepard,  33 
Ala.  648 ;  Blanchard  v.  Young,  1 1 
Cush.  (Mass.)  341;  Denten  v.  Hill, 
4  Havw.    (Tenn.)   84. 

*Post  V.  Leland.  184  Mass.  601,  69 
N.  E.  361;  Wilson  v.  Young,  2  Cr. 
(U.  S.  C.  C.)  33;  Felton  v.  McDon- 
ald, 4  D.  &  B.  (N.  C.)  L.  406;  Con- 
way V.  State  Bank,  4  Ark.  48. 

"Knickerbocker  v.  Wilcox,  83  Mich. 
200,  47  N.  W.  123,  21  Am.  St.  Rep. 
595.  Proof  that  a  document  involved 
in  a  case  is  in  the  possession  of  some 
one  outside  the  jurisdiction  is  not  of 
itself  sufficient  to  authorize  the  intro- 
duction of  parol  evidence  as  to  it. 
If  the  document  is  in  the  hands  of  a 
party  to  the  suit  he  should  be  given 
notice  to  produce  it,  and  if  in  the 
hands  of  another,  his  deposition 
should  be  taken  or  some  proper  at- 
tempt made  to  obtain  it.  Wiseman 
V.  Northern  Pacific  Ry.  Co.,  20  Ore. 
425,  26  P.  272,  23  Am.  St.  Rep.  135; 
Turner  v.  Yates,  16  How.  14;  contra, 
Gordon  v.  Searing,  8  Cal.  49;  Beattie 
V.  Hilliard,  55  N.  H.  428;  Brown  v. 
Wood.  19  Mo.  475;  Shepard  v.  Gid- 
dings,  22  Conn.  482 ;  Ralph  v.  Brown, 
3  Watts  &  S.  395 ;  Gordon  v.  Tweedy, 
74  Ala.  232,  49  Am.  Rep.  813. 

"  Rex  v.  Johnson,  7  East,  66 ;  Pend- 
ney  v.  Crescent  Life  Ins.  Co.,  21  La. 
An.  410;  Halderman  v.  Halderman,  1 
Hemp.    (Tenn.)   559. 

"Tracy's  Peerage  Case,  10  CI.  &  F. 


164;  Mortimer  v.  IMcCallum,  6  M,  & 
W.  68.       See  ante,  §  3. 

^^  United  States  v.  Winchester,  2 
McLean  (U.  S.  C.  C.)  135;  Potier  v 
Barclay,  15  Ala.  439;  Guines  v.  Fall 
15  Cal.  63;  Bank  of  South  Carolina 
v.  Brown,  Dudley  (Ga.),  62;  Jeffer 
son  V.  Conaway,  5  Harr.  (Del.)  16 
State  V.  Lockwood,  5  Blackf.  (Ind. ) 
145;  Anderson  Bridge  Co.  v.  Apple 
gate,  13  Ind.  339;  Patterson  v.  Lin 
den,  14  Iowa,  414;  Dupey  v.  Ashby 
2  A.  K.  Mar.  (Ky.)  11;  Williams  v 
Benton,  12  La.  An.  91;  Kennedy  v 
Fowke,  5  H.  &  J.  (Md.)  63;  Robert 
son  V.  Parks,  3  Md.  Ch.  65;  Common 
wealth  V.  Emery,  2  Gray  (Mass.) 
80;   Browne  v.  Boston,  id.  494;   Lew 

'ire  V.  Dille,  17  Mo.  64;  Farmers  and 
Mechanics'  Bank  v.  Lunergon,  21 
Mo.  46;  Ford  v.  Munson,  4  N.  J.  L. 
93 ;  Rogers  v.  Van  Hoeson,  12  Johns. 
(N.    Y.)     220;      Weeks    v.    Lyon,    18 

•Barb.  (N.  Y.)  530;  Milliken  v.  Barr, 
7  Penn.  St.  23;  Garland  v.  Cunning- 
ham, 37  id.  228;  Kimble  v.  Joslin,  1 
Overt.  (Tenn.)  380;  Farnsworth  v. 
Sharp,  5  Sneed  (Tenn.),  615;  Dean 
V.  Berder,  15  Tex.  298. 

"Mills  V.  Oddy,  6  C.  &  P.  728; 
Marston  v.  Downes,  1  Ad.  &  El.  31; 
Doe  V.  Ross,  7  M.  &  W.  102. 

"  This  rule  applies  in  those  cases 
where  it  is  desirable  to  prove  the  ap- 
pointments of  public  officers.  The  lavr 
raises  a  strong  presumption  from  the 


16 


Evidence. 


[Chap.  1 


papers  are  voluminous,  and  it  is  only  necessary  to  prove  their 
general  results ;^^  and,  Ttli,  Where  the  question  arises  on,  the  exarni- 
nation  of  a  witness  on  the  voir  dire}^ 

Evidence  is  admissible  of  one  who  has  searched  the  records  and 
failed  to  find  there  certain  entries  or  documents.  It  is  said  that  at 
common  law  the  fact  that  a  specific  document  or  entry  did  not 
exist  in  public  records  might  be  proven  by  the  testimony  of  any- 
one who  had  made  a  search  of  the  records  for  the  purpose.  This 
was  not  confined  to  the  custodian.^^ 


Sec.  7.  Loss  of  Paper,  how  established. 

In  order  to  bring  a  case  within  the  first  rule  stated 
supra,  the  burden  is  upon  the  party  seeking  to  make 
use  of  secondary  evidence  to  establish  either  that  the 
paper     isi     beyond     the     jurisdiction     of     the     court^     or     that 


undisturbed  exercise  of  a  public  of- 
fice, that  the  appointment  is  valid, 
and,  therefore,  it  is  not  generally 
necessary  to  produce  the  written  ap- 
pointment of  public  officers,  hut  it  is 
sufficient  to  sJioiv  that  they  acted  as 
such.  Allen  v.  McNeel,  1  Mill  (S. 
C.)  Const.  459;  Brewster  v.  Sewell, 
3  Br.  Ala.  302 ;  Bunbury  v.  Matthews, 
1  C.  &  K.  382 ;  Rex  v.  Verlst,  4  Camp. 
432 ;  Berryman  v.  Wise,  4  T.  R.  366 ; 
Rex  V.  Howard,  1  M.  &  Rob.  187.  See 
post,  §       ,  Presumptions. 

"Where  an  account  book  contains 
complicated  or  voluminous  accounts 
or  transactions,  the  examination  of 
which  could  not  conveniently  take 
place  in  court,  an  accountant  who  has 
made  an  examination  of  the  boolc  may 
state  the  result  of  his  computation, 
but  where  the  items  in  issue  are 
simple  in  nature  the  book  itself  is  the 
best  and  only  evidence  admissible. 
Mendel  v.  Boyd  (Neb.,  1904),  99  N. 
W.  493;  Roberts  v.  Doxon,  Peake, 
83 ;  Meyer  v.  Lefton,  2  Starkie,  274. 

"Butchers'  Co.  v.  Jones,  1  Esp. 
160;  Miller  v.  Mariners'  Church,  7 
Me.  51;  Rex  v.  Gesburn,  15  East,  57; 
Sewell  v.  Stubbs,  1  C.  &  P.  74; 
Botham  v.  Swingler.  1  Esp.  164;  Car- 
lisle V.  Eady,  1  C.  &  P.  234. 

"State  V.  Rosenthal  (Wis.,  1905), 
102  N.  W.  49;  McPlielemy  v.  Mc- 
Phelemy     (Conn.,   1905),   61   A.   477; 


Vizard  v.  Moody,  119  Ga.  918,  43  S.E. 
426;  Greenfield  v.  Melntire,  112  Ga. 
091,  38  S.  E.  44;  Hines  v.  Johnston, 
95  Ga.  629,  23  S.  E.  470.  In  North 
Dakota  it  is  held  that  proof  of  the 
absence  of  a  record  entry  or  document 
should  be  furnished  by  introducing 
the  record  itself  or  by  the  oral  tes- 
timony of  the  custodian.  Wliere  the 
records  are  so  voluminous  that  oral 
testimony  is  admissible  to  show  the 
absence  of  any  particular  record  or 
entry,  it  must  ordinarily  be  given  by 
the  custodian  or  keeper  of  the  records 
and  not  by  a  stranger ;  and  then  only 
when  a  diligent  examination  is  shown 
to  have  been  made.  Svkes  v.  Beck, 
12  N.  D.  242,  96  N.  W.  ,  844,  852; 
Fisher  v.  Betts,  12  N.  D.  197,  96  N. 
W.  132,  136. 

^Sunday  v.  Thomas,  26  Ga.  537; 
Shorter  v.  Sheppard,  33  Ala.  648; 
Ralph  V.  Brown,  3  W.  &  S.  (Penn.) 
395 ;  Burnham  v.  Wood,  8  N.  H.  334 ; 
Waller  v.  Cralle,  8  B.  Mon.  (Ky.)  11; 
Forrest  v.  Forrest,  6  Duer  (N.  Y.), 
102;  Schaeffer  v.  Georgia  R.  R.  Co., 
66  Ga.  39;  Brown  v.  Wood,  19  Mo. 
475;  Underwood  v.  Lane,  1  Dev.  (N. 
C.)  D.  173.  Evidence  that  the  re- 
cipient of  a  letter  lived  out  of  the 
State  and  had  died  was  held  sufficient 
basis  for  the  introduction  of  a  letter 
press  copy  of  it.  Hirsch  v.  C.  W. 
Leatherbee  Lumber  Co.,  69  N.  J.  509, 


Sec.  7.] 


Best  and  Secondary  Evidence. 


17 


it  is  lost  or  destroyed.^  Not  only  must  the  party  prove 
that  such  a  paper  once  existed,^  and  also  its  due  execu- 
tion/ genuineness,^  and  its  loss  or  destruction,"  without  culpability 


55  A.  645,  647.  In  Topping  v.  Bick- 
ford,  4  Allen  (Mass.),  120,  it  was 
held  that  where  the  books  of  a  for- 
eign corporation  are  in  another  State, 
a  party  is  not  bound  to  produce  them, 
and  that  depositions  of  its  late  of- 
ficers were  admissible,  although,  in 
reply  to  cross-interrogatories  request- 
ing them  to  do  so,  they  did  not  annex 
the  records  of  the  company,  or  copies 
of  them,  if  they  were  not  in  their  cus- 
tody. In  a  "later  case — Binney  v. 
Russell,  109  Mass.  55,  where  a  wit- 
ness whose  deposition  was  taken  out 
of  the  State  refused  to  annex  an  origi- 
nal document  in  his  possession  to  his 
deposition,  but  did  annex  a  copy  of 
it,  which  he  swore  to  be  correct,  it 
was  held  that  the  copy  was  inadmis- 
sible. See,  also,  Amherst  Bank  v. 
Conkey,  4  Met.  (Mass.)  459.  Where 
a  corporation  may  not  be  compelled 
to  surrender  its  private  papers,  an 
officer  whose  deposition  is  taken  may 
annex  to  the  deposition  a  certified 
copy  of  an  original  paper.  Spencer 
V.  Phoenix  Mut.  Life  Ins.  Co.,  119 
Wis.  530,  97  N.  \Y.  207. 

="  Emery  v.  Vinall,  26  Me.  295; 
Patton  V.  Rambo,  20  Ala.  485;  Sims 
V.  Sims,  5  Humph.  (Tenn.)  370; 
Morrison  v.  Welty,  18  Md.  169;  Man- 
son  V.  Blair,  15  Ind.  242;  Ohio  Ins. 
C.  V.  Nunemacher,  10  id.  234;  Per- 
kins V.  Ermel,  2  Kan.  325 ;  Hughes  v. 
Easten,  4  J.  J.  Mar.  (Ky.)  572; 
Marshall  v.  Harvy,  9  Gill  (Md.), 
251;  Dunnock  v.  Dunnock,  3  Md.  Ch. 
140;  Boynton  v.  Rees,  8  Pick.  (Mass.) 
329;  Benton  v.  Craig,  2  Mo.  198; 
Morrill  v.  Foster,  32  N.  H.  358;  Bo- 
zorth  V.  Davidson,  3  N.  J.  L.  (2 
Penn.)  617;  Chambers  v.  Hunt,  22 
N.  J.  L.  552;  Redman  v.  Green,  3 
Ired  (N.  C.)  Eq.  54;  Bowman  v. 
Smith,  1  Strobh.  (S.  C.)  246;  Moury 
V.  Schroder,  4  id.  69 ;  Creed  v.  White, 
11  Humph.  (Tenn.)  549;  Langsford 
V.  Smith,  12  Gratt.  (Va.)  554;  Rans- 
dale  V.  Grove.  4  McLean  (U.  S.  C. 
€.),  282;  Lewis  v.  Baird,  3  id.  56; 
Heynolds  v.  Quattlebaune,  2  Rich.  (S. 
C.)  140;  Hussey  v.  Roquemore,  27 
Ala.  281;  Thalick  v.  Presley,  29   id. 


427;  Griffith  v.  Huston,  7  J.  J.  Mar. 
(Kv.)  385;  Spence  v.  Spence,  2  Brev. 
(S.'C.)  466;  Gillespie  v.  Tucker,  id, 
433;  United  States  v.  Porter,  3  Day 
(Conn.),  283;  Norris  v.  Russell,  5 
Cal.  249;  Morgan  v.  Jones,  24  Ga. 
155 ;   Sloo  V.  Roberts,  7  Ind.  128. 

'  Thompson  v.  Thompson,  9  Ind. 
323 ;  Lamerson  v.  Hoffman,  24  N. 
J.  L.  674;  Culpepper  v.  Wheeler,  2 
McMull  (S.  C).  66;  Dean  v.  Pond,  1 
N.  J.  L.  379;  Hewes  v.  Wiswell,  8 
Me,  94;  Weatherhead  v.  Baskerville, 
11  How.  (U.  S.)  329;  Hanna  v. 
Price,  23  Ala.  826 ;  Swift  v.  Fitzhugh, 
9  Port.  (Ala.)  39;  Downing  v.  Pick- 
ering, 15  N.  H.  344;  Stockdale  v. 
Young,  3  Strobh.  (S.  C.)  501  n;  Bas- 
kin  V.  Seechrist,  6  Penn.  St.  154; 
Jackson  v.  Woolsej',  11  Johns.  (N. 
Y.)    446. 

*Jack  V.  Woods,  29  Penn.  St.  375; 
Atwell  V.  Lynch,  39  Mo.  519;  Perry 
V.  Roberts,  17  id.  36;  Embury  v.  Mil- 
lar, 1  A.  K.  Mar.  (Ky.)  300;  Kim- 
ball V.  Morrell,  4  Me.  368;  Goodier  v. 
Lake,  1  Atk.  446;  Doe  v.  Whitefoot, 
8  C.  &  P.  270;  Jackson  v.  Frier,  16 
Johns.  (N.Y'. )  196;  Rex.  v.  Culpepper, 
Skin.  673.  If  the  paper  was  an  at- 
tested instrument,  the  attesting  wit- 
ness should  be  called,  or,  in  the  event 
of  his  death,  or  his  whereabouts  are 
unknown,  his  handwriting  should  be 
proved  precisely  in  the  same  way  as 
if  the  deed  or  instrument  had  been 
produced.  But  if  it  cannot  be  ascer- 
tained where  the  attesting  witness 
was,  this  strictness  of  proof  will  not 
be  required.     Taylor  on  Ev.  §   316. 

=  Helton  V.  Aslier,  103  Ky.  730,  46 
S.  W.  22,  82  Am.  St.  Rep.  601;  Rey- 
nolds v.  Jourdan,  6  Cal.  108 ;  Stowe 
v.  Thomas,  12  Penn.  St.  209;  Mc- 
Pherson  v.  Rathbone,  7  Wend.  (N. 
Y. )  216.  The  former  existence  and 
contents  of  a  lost  deed  may  be  proved 
by  circumstantial  evidence,  as  by  ref- 
erences to  it  in  other  deeds.  Bright 
V.  Allan,  203  Penn.  386,  394,  53  A. 
248,  250. 

"Helton  V.  Asher,  103  Ky.  730,  46 
S.  W.  22,  82  Am.  St.  Rep.  (ioi;  Eakin 
V.   Vance,    IS   Miss.    149;      Morrill   v. 


18 


EviDEJNfCE. 


[Chap.  1 


on  his  part/  but  he  must  also  repel  every  inference  of  fraudulent 
intent  in  its  destruction,  or  such  evidence  will  be  rejected.*  He 
must  prove  its  destruction  positively,  or  presumptively  by  showing 
that  it  has  been  thrown  aside  as  useless/  or  that  its  destruction  was 
the  result  of  accident,  or  was  without  the  agency  or  consent  of  the 
party  who  seeks  to  show  its  contents.  The  object  of  the  rule 
which  requires  the  production  of  the  best  evidence  of  which  the 
facts  sought  to  be  established  are  susceptible,  is  the  prevention  of 
fraud ;  for  if  a  party  is  in  possession  of  this  evidence,  and  with- 
holds it,  and  seeks  to  substitute  inferior  evidence  in  its  place,  the 
presumption  naturally  arises  that  the  better  evidence  is  withheld 
for  fraudulent  purposes.  Therefore,  when  it  appears  that  the 
best  evidence  has  been  voluntarily  and  deliberately  destroyed,  the 
same  presumption  arises,  and  unless  met  and  overcome  by  a  full 
explanation  of  the  circumstances,  it  becomes  conclusive  of  a  fraud- 
ulent design,  and  all  secondary  or  inferior  evidence  is  rejected. 
But  if  the  destruction  was  made  upon  an  erroneous  impression  of 


Foster,  32  N.  H.  358;  Carr  v.  Carr, 
36  Mo.  408;  Thalick  v.  Pressly,  29 
Ala.  427.  Or  the  absence  of  the 
writing  must  be  accounted  for  in  a 
satisfactory  manner.  Wiswall  v. 
Knevals,  18  Ala.  65;  Baldwin  v.  Mas- 
sie,  7  Wheat.  122;  Bigelow  v.  Young, 
30  Ga.  121;  Durham  v.  Holeman,  id. 
19;  Dermont  v.  McKracken,  6  Blackf. 
(Ind.)  356;  Perkins  v.  Bard,  16  La. 
An.  443;  Marks  v.  Winter,  19  id. 
445;  Young  v.  Mackall,  3  Md.  Ch. 
398;  Doe  v.  McCaleb,  3  Miss.  756; 
Brighton,  &c.,  Bank  v.  Philbrick,  40 
N.  H.  506 ;  Sterling  v.  Potts,  5  N.  J. 
L.  773;  Cary  v.  Campbell,  10  John. 
(N.  Y.)  363;  Dumas  v.  Powell,  3 
Dev.  (N.  C.)  L.  103;  Thompson  v. 
Applewhite,  1  Dev.  (N.  C.)  Eq.  460; 
Caufman  v.  Congregation,  6  Binn. 
(Penn.)  59;  Dawson  v.  Graves,  4 
Call  (Va.),  127;  Brackett  v.  Evans, 
1  Cush.    (Mass.)    79. 

'Winona  v.  Hoff,  11  Minn.  119. 
Even  where  a  paper  is  voluntarily  de- 
stroyed by  a  party,  he  may,  after 
proof  of  its  destruction,  give  second- 
ary evidence  of  its  contents.  People 
V.  Dennis,  4  Mich.  609;  Downy  v.  Lo- 
gan. 12  B.  Mon.  (Ky.)  380;  Riggs 
V.    Taylor,    9    Wheat.     (U.    S.)    483; 


Adams  v.  Guice,  30  Miss.  397;  Orne 
V.  Cook,  31  111.  233. 

*  Joannes  v.  Bennett,  5  Allen 
(Mass.),  169;  Blake  v.  Frost,  44  111. 
102.  It  is  for  the  court  to  determine 
whether  the  paper  was  destroyed  with 
a  fraudulent  intent.  Smith  v.  Hol- 
yoke,  112  Mass.  517;  Randolph  v. 
Lane,  57  Ind.  115;  Renna  v.  Bank  of 
Columbia,  9  Wheat.   (U.  S.)   581. 

« Davis  V.  Teachout,  126  Mich.  135; 
85  N.  W.  475,  86  Am.  St.  Rep.  531; 
Rex  V.  Johnston,  7  East,  69.  In  this 
case  the  publisher  of  a  paper,  in 
which  a  libel  had  appeared,  stated 
that  he  believed  the  original  was 
either  destroyed  or  lost,  having  been 
thrown  aside  as  useless.  It  was  held 
sufficient  to  let  in  proof  of  loss.  See, 
also.  Kensington  v.  Ingles,  8  East, 
278;  see,  also.  Smith  v.  Holyoke,  112 
Mass.  517,  where  in  an  action  the 
contents  of  certain  letters  written  to 
her  as  the  defendant  became  import- 
ant as  proof,  and  the  plaintiff  having 
sworn  that  she  having  no  further  use 
for  them  had  destroyed  them,  the 
court  held  that  the  reason  given  jus- 
tified the  judge  in  holding  that  they 
were  not  destroyed  with  a  fraudulent 
intent. 


See.  8.]  Best  and  Secondaey  Evidence.  19 

its  effect,  secondary  evidence  is  admissible.  The  motive  is  the 
controlling  fact.^*' 

Thus,  parol  evidence  was  offered  to  prove  that  the  plaintiff  exe- 
cuted a  discharge  of  the  defendant  from  a  certain  claim,  and  ten- 
dered it  to  him  in  the  court  room,  by  putting  it  in  his  lap,  and  that 
he  brushed  it,  or  it  fell,  upon  the  floor,  and  was  not  afterwards 
seen.  It  was  held  that  such  evidence  was  admissible,  the  instru- 
ment, under  such  circumstances,  being  considered  a  lost  paper.^^ 

Where  the  loss  or  destruction  of  the  paper  is  probable,  very 
slight  evidence  of  its  loss  or  destruction  will  be  required,  and  a 
iLSeless  paper  will  be  presumed  to  have  been  destroyed.^^ 

The  sufficiency  of  evidence  to  prove  the  loss  of  a  written  docu- 
ment depends  on  the  facts  of  each  particular  case  and  lies  largely 
within  the  discretion  of  the  trial  judge.  There  is  no  arbitrary 
rule  disentitling  any  one  except  the  party  entitled  to  the  custody 
of  the  paper  from  testifying  as  to  its  loss.^^ 

Sec.  8.  Search,  Sufficiency  of. 

Where  the  paper  writing  sought  to  be  established  by  secondary 
evidence  should  be  in  the  custody  of  the  party  seeking  to  show  its 
contents,  or  in  the  custody  of  some  person  not  a  party  to  the  suit, 
within  the  jurisdiction  of  the  court,  such  evidence  is  not  admissible 
unless  the  party  satisfies  the  court  that  he  has  used  due  diligence,. 
and  has  been  unable  to  find  it.^  He  must  establish  its  loss  by  proof 
that  he  has  made  diligent  but  unavailing  search  for  the  paper  in 
places  where  it  would  be  most  likely  to  be  found,  and  the  degree 
of  diligence  necessary  to  be  shown  must  necessarily  depend  upon 

'"Bagley  v.  McMickle,  9  Cal.  430;  ^^  Liles  v.  Liles,  183  Mo.  326,  81  S. 

see,  also.  Rex  v.  Johnston,  ante.  W.  1101. 

"Stoddard  v.  Mix,  14  Conn.  12.  'Davis  v.  Spooner,  3  Pick.  (Mass.) 
"Where  a  card  is  shown  to  liave  284;  Poignand  v.  Smith,  8  id.  272. 
been  tacked  to  a  railroad  tie,  very  The  burden  of  showing  the  loss  of  a 
slight  evidence  of  its  loss  is  a  suffi-  written  instrument  is  upon  tlie  party 
cient  foundation  for  secondary  evi-  seeking  to  introduce  secondary  evi- 
dence of  its  contents,  and  the  very  dence,  and  no  instrument  can  be  said 
statement  of  the  circumstances  of  its  to  be  lost  until  a  careful  search  has 
finding  may  be  sufficient  where  it  was  been  made  for  it.  Hansen  v.  Anieri- 
not  intended  to  be  preserved.  At-  can  Ins.  Co.,  57  Iowa,  741.  In  the 
chinson,  T.  &  S.  F.  R.  Co.  v.  Palmore,  case  of  judgment  rolls  and  other  docu- 
68  Kan.  545,  75  Pac.  509;  Rex  v.  E.  ments  required  to  be  kept  in  the  cus- 
Farleigh,  6  D.  &  R.  153 ;  Freeman  v.  tody  of  certain  officers,  if  they  can- 
Arkell,  2  B.  &  C.  496.  The  admission  not  be  found  in  the  proper  place,  the 
of  the  defendant  that  he  destroyed  presumption  is  that  they  are  lost  or 
the  paper,  is  sufficient.  Rhode  v.  destroved.  Mandeville  v.  Reynolds, 
McLean,  101  111.  467.  68  N.  Y.  528. 


20 


Evidence. 


[Chap.  1 


the  value  and  importance  of  the  lost  document  and  the  circum- 
stances of  each  case.^ 

The  object  of  the  proof  is  merely  to  establish  a  presumption  of 
the  loss  of  the  paper,  therefore  the  party  is  not  generally  required 
to  show  that  he  has  made  such  a  search  as  would  be  made  for 
stolen  goods,  nor  be  in  a  position  to  negative  every  possibility  of  its 
having  been  kept  back,  but  it  is  sufficient  if  he  has,  in  good  faith, 
exhausted,  in  a  reasonable  degree,  all  the  sources  of  information 
and  means  of  discovery  which  the  nature  of  the  case  would  natu- 
rally suggest.^ 


*  Wiseman  v.  Northern  Pacific  R. 
Co.,  20  Ore.  425,  26  P.  272,  23  Am. 
St.  Rep.  135;  Spalding  y.  Bank  of- 
Susquehanna  Co.,  9  Penn.  St.  28; 
Witter  V.  Latham,  12  Conn.  399; 
Gully  V.  Bishop  of  Exeter,  4  Bing. 
298.  Where  the  party  who  had  the 
custody  of  the  paper  swears  that  he 
has  searched  "  everywhere  where  it 
could  be  expected  to  be  found " 
Pierce  v.  Wallace,  18  Cal.  165,  or 
that  "  it  is  not  in  his  possession  or 
control  "  Prettpnan  v.  Wallace,  34 
111.  175,  or  *•  it  is  lost,  I  cannot  tell 
what  has  become  of  it "  Voorhees  v. 
Dorr,  51  Barb.  (N.  Y.)  580,  this  has 
been  held  sufficient.  Drake  v.  Rainey, 
3  Rich.  (S.  C.)  37;  Poe  v.  Darrah,  20 
Ala.  288:  Braintree  v.  Battles.  6  Vt. 
595:  Graff  v.  Pittsburgh  R.  R.  Co., 
31  Penn.  St.  487.  Proof  by  the 
grantee  in  a  deed  that  he  deposited  it 
in  the  post-office  directed  to  another, 
who  testifies  that  he  never  received 
it,  and  that  inquiry  has  been  made  at 
the  office  of  deposit  and  delivery,  and 
to  the  general  post-office,  by  letter, 
•without  finding  the  deed,  has  been 
held  sufficient.  M'Rae  v.  Pegues,  4 
Ala.  158.  So  where  the  plaintiff  tes 
tified  that  he  deposited  a  postal  card 
in  the  post-office,  and  the  defendant 
never  received  it,  it  was  held  to  con- 
stitute a  sufficient  ground  for  letting 
in  secondary  evidence  of  its  contents 
without  any  search  for  it.  Vancil  v. 
Hagler,  27  Kan.  407.  What  will  con- 
stitute due  diligence  in  the  search  for 
public  records  and  documents,  so  as 
to  admit  secondary  evidence  in  proof 
of  their  contents,  will  depend  upon 
the  circumstances  of  each  particular 
case.  Thus  where  more  than  20 
years  have  elapsed  since  the  sale,  and 


the  register  of  probate  testifies  that 
he  had  made  search  of  the  records  in 
the  case  of  N.  S. ;  that  he  found  but 
part  of  the  papers  in  that  case;  that 
he  found  the  files  in  very  bad  condi- 
tion, and  some  of  them  broken  open 
and  loose;  and  that  he  examined  the 
index  of  the  records  for  the  year  or 
two  spoken  of,  without  finding  the 
papers  desired  or  reference  to  the 
record  thereof  in  the  index,  the  court 
will  admit  parol  evidence  to  show  the 
contents  of  such  papers,  especially 
when  the  transaction  occurred  many 
years  before.  Simpson  v.  Norton,  45 
Me.  281.  In  Brewster  v.  Sewell,  3 
B.  &  Aid.  303,  Abbott,  C.  J.,  said: 
"  WHien  the  loss  or  destruction  of  the 
paper  may  almost  be  presumed,  very 
slight  evidence  of  its  loss  or  destruc- 
tion is  sufficient:"  and  Best,  J.,  said: 
"  If  a  paper  be  of  considerable  value, 
or  if  there  be  reason  to  suspect  that 
the  party  not  producing  it  has  a 
strong  interest  which  would  induce 
him  to  withhold  it,  a  very  strict  ex- 
amination would  probably  be  re- 
quired ;  but  if  a  paper  be  utterly  use- 
less, and  the  party  could  not  have  any 
interest  in  keeping  it  back,  a  much 
less  strict  search  Avould  be  necessary 
to  let  in  parol  evidence." 

'Folsom  v.  Scott,  6  Cal.  460; 
M'Gahey  v.  Alston,  2  M.  &  W.  214: 
Hatch  V.  Carpenter,  9  Gray  (Mass.), 
271;  Atherton  v.  Phoenix  Ins.  Co., 
109  Mass.  32;  Tillotson  v.  Warner,  3 
Gray   (Mass.),  574. 

The  general  rule  concerning  proof 
of  a  lost  instrument  is  that  reason- 
able search  shall  be  made  for  it  in'  the 
])Iace  where  it  was  Inst  known  to 
have  been,  and,  if  such  search  does 
not  discover   it,   then   inquiry   should 


See.  8.] 


Best  and  Secondary  Evidence. 


21 


If  the  instrument  was  an  indenture,  interchangeably  signed  and 
sealed,  or  if  it  was  executed  in  duplicate,  and  the  part  belonging 
to  the  party  seeking  to  use  it,  is  lost,  due  diligence  must  be  shown 
to  ascertain  whether  any  counterpart  exists,  and  if  so,  to  obtain  it 


be  made  of  persons  most  likely  to 
have  its  custody,  or  who  have  some 
reason  to  know  of  its  whereabouts. 
The  party  must  show  that  he  has  in 
good  faith,  and  to  a  reasonable  de- 
gree, made  an  effort  to  discover  tue 
instrument,  and  to  that  end  has  ex- 
hausted all  sources  of  information 
and  means  of  discovery  which  were 
open  to  him,  and  which,  in  the  nature 
of  the  case,  were  possible.  No  fixed 
rule  as  to  the  necessary  proof  to  es- 
tablish loss,  or  what  constitutes  rea- 
sonable search,  can  be  formulated. 
The  terms  "  reasonable  search  "  and 
"  in  good  faith,"'  applied  to  proof  of 
lost  instruments,  must  be  construed 
and  defined  under  the  facts  in  each 
particular  case.  There  is  no  inflexi- 
ble definition  under  which  they  can 
be  applied  to  all  cases.  The  sole  ob- 
ject of  such  proof  is  to  raise  a  rea- 
sonable presumption,  merely,  that  the 
instrument  is  lost;  and  this  is  a  pre- 
liminary inquiiy  addressed  to  the  dis- 
cretion of  the  judge.  Kenniff  v. 
Caulfield,  140  Cal.  3-4,  73  Pac.  803. 
The  purposes  for  which  it  is  proposed 
to  use  it  on  the  trial  will  also  have 
an  important  bearing  in  determining 
the  degree  of  diligence  required.  If 
the  cause  of  action  or  defense  is 
founded  on-  the  supposed  writing,  the 
party  offering  the  evidence  will  be  re- 
quired to  show  a  greater  degree  of 
diligence  in  the  attempt  to  produce 
the  original  than  if  it  is  desired  to 
be  used  as  evidence  in  some  collateral 
matter.  The  proof  of  search  and 
proof  of  loss  required  is  always  pro- 
portionate to  the  character  and  value 
of  the  paper  supposed  to  be  lost. 
Wiseman  v.  Northern  Pacific  R.  Co., 
20  Ore.  425,  26  P.  272,  23  Am.  St. 
Rep.  135;  American  Life  Ins.  Co.  v. 
Rosenagle.  77  Pa.  St.  507. 

It  may  be  stated  as  a  general  rule 
that  a  party  is  not  allowed  to  pro- 
duce secondary  evidence  until  a  bona 
fide  and  diligent  search  has  been  un- 
successfulh/  made  for  the  lost  instru- 
ment, in  the  place  tchere  it  was  most 
likely  to  be  found.     Meek  v.  Spencer, 


8  Ind.  118;  S.  P.  Cook  v.  Hunt,  24 
111.  535;  Holbrook  v.  School  Trustees, 
28  111.  187;  Dickcrson  v.  Talbot.  14 
B.  Mon.  (Ky.)  60;  Sellers  v.  Car- 
penter, 33  Me.  485;  Kidder  v.  Blais- 
dall,  45  Me.  461 ;  Murray  v.  Bu- 
chanan, 7  Blackf.  (Ind.)  549;  Mulli- 
kin  V.  Boyce,  1  Gill  (Md.),  60;  Glenn 
V.  Rogers.  3  Md.  312;  Doe  v.  McCaleb, 
3  Miss.  756 ;  Barton  v.  Munian,  27 
Mo.  235;  Jackson  v.  Hasbrouck,  1:2 
Johns.  (N.  Y.)  192;  Jackson  v.  Frier, 
16  id.  192;  Jackson  v.  Root,  18  id. 
60 ;  Poignand  v.  Smith,  8  Pick. 
(Mass.)  272:  Dan  v.  Brown,  4  Cow. 
(N.  Y.)  483;  Jackson  v.  Betts,  6  id. 
377;  9  id.  208;  Dreisbach  v.  Birger, 
6  Watts  &  S.  (Penn.)  564;  Park 
v.  Bird,  3  Pa.  St.  360;  Vaulx  v. 
Merriwether,  2  Sneed  (Tenn.),  683; 
Wade  v.  Work,  13  Tex.  482;  Royal- 
ton  V.  Turnpike  Co.,  14  Vt,  311; 
Fletcher  v.  Jackson,  23  Vt.  581. 

Where  an  insurance  policy  is  shown 
to  be  in  the  hands  of  its  agent  his 
testimony  that  he  did  not  know  where 
the  policy  was  and  that  he  could  not 
find  it  is  not  sufficient  showing  for 
the  introduction  of  secondary  evi- 
dence of  its  contents  where  he  did  not 
show  where  he  looked  for  the  policy 
nor  what  was  the  character  of  the 
search  he  made.  Phoenix  Assurance 
Co.  of  London  v.  McAuthor,  116  Ala. 
659,  22  So.  903,  67  Am.  St.  Rep.  154. 

Testimony  "  I  received  a  letter 
from  Humphrey,  which  is  lost.  I 
cannot  find  it,''  is  insufiicient  to  pre- 
dicate the  admission  of  secondary  evi- 
dence, as  it  does  not  show  that  due 
diligence  was  used  in  the  search  lor 
the  lost  paper.  It  is  the  duty  of  the 
judge  to  decide  questions  as  to  the 
existence  of  facts  rendering  secondary 
evidence  admissible  unless  in  decid- 
ing such  a  question  the  judge  were  in 
effect  deciding  the  very  matter  in 
issue,  but  the  question  is  to  be  de- 
cided, not  according  to  his  discretion, 
but  according  to  law.  Averv  v. 
Stewart,  134  N.  C.  287,  46  S.  E.'siO. 
The  following  testimony  of  an  attor- 
ney was  held  sufficient  to  Marrant  the 


22 


Evidence. 


[Chap.  1 


to  be  used  upon  the  trial/      All  the  proper  sources  from  which 
primary  evidence  can  be  secured  must  be  first  exhausted,^  and  if 


introduction  of  secondary  evidence  of 
the  contents  of  a  letter  sent  to  Jiim 
by  his  client  in  the  previous  case: 
"  I  do  not  know  where  that  letter  is. 
I  have  searched  twice  during  the  past 
week  for  it  among  my  papers  at  my 
office  and  other  places  where  I  keep 
my  papers,  but  have  not  been  able  to 
find  it.  My  impression  is,  that  the 
letter  lay  upon  my  table  till  after  I 
had  seen  the  plaintiff  at  that  trial, 
and  then  went  into  the  waste  basket." 
On  cross-examination  he  testified:  "I 
did  not  look  through  all  my  files  of 
letters  and  papers,  for  when  I  came 
across  a  file  marked  as  of  a  previous 
year,  I  did  not  search  through  it;  I 
did  not  examine  the  papers  I  looked 
over,  one  by  one,  and  there  were 
places  containing  papers  (but  not  pri- 
vate papers)  that  I  did  not  examine." 
Hatch  v.  Carpenter,  9  Gray  (Mass.), 
271. 

*  Poignand  v.  Smith,  8  Pick. 
(Mass.)  272;  Rex  v.  Castleton,  6  T. 
E.  206;  Mann  v.  Godbald,  3  Bing. 
292. 

^Rex  V.  Stokes,  1  B.  &  Aid.  373; 
Hemphill  v.  McClimans,  24  Penn.  St. 
367;  Graff  v.  Pittsburgh  R.  R.  Co.,  31 
id.  489;  Rush  v.  Whitney,  4  Mich. 
495;  Drake  v.  Rainey,  3  Rich.  (S. 
C.)  37;  Leland  v.  Cameron,  31  N.  Y. 
115.  The  deputy  clerk  of  a  court  tes- 
tified that  he  had  diligently  searched 
for  a  certain  bill  and  answer  in  their 
proper  place,  could  not  find  them,  and 
did  not  believe  they  were  in  the  office, 
and  showed  a  receipt  for  them  given 
by  S.,  a  former  attorney  for  the  party 
against  whom  they  were  sought  to  be 
given  in  evidence.  S.  swore  he  had 
delivered  them  to  G.,  his  successor  in 
the  case  now  on  trial,  and  had  just 
searched  for  them  in  his  own  office 
and  could  not  find  them.  G.  swore 
he  had  never  seen  or  had  them.  It 
was  held  that  this  was  a  sufficient 
foundation  for  the  introduction  of 
secondary  evidence  of  their  contents. 
Carr  v.  Miner,  42  111.  179.  So  the  de- 
struction of  the  dwelling  house  of  a 
party  by  fire  raises  such  a  presump- 
tion of  the  loss  of  papers  as  to  let  in 
parol  evidence  of  their  contents.  Har- 
rison v.  Long,  4  Desau.    (S.  C. )    110. 


But  in  such  a  case  if  any  papers  are 
saved,  it  must  appear  that  they  were 
also  examined,  for  the  paper  in  ques- 
tion might  be  one  of  those  saved.  Fol- 
som  V.  Scott,  6  Cal.  460.  Where 
proof  was  made  to  the  court  that  the 
executor  of  the  grantee  had  searched 
for  an  original  deed  and  had  not  been 
able  to  find  it ;  that  after  the  grant- 
ee's death  his  son  had  carried  off  to  a 
place  in  the  country  a  trunk  contain- 
ing his  father's  papers,  which  the  ex- 
ecutor had  not  searched,  but  he  had 
made  verbal  application  to  him  for 
the  trunk  and  the  deed,  it  was  held 
that  a  copy  was  not  admissible  be- 
cause the  paper  might  be  in  the 
trunk,  which  was  not  examined,  and 
no  step  had  been  taken  to  bring  the 
executor  into  court  with  a  subpoena 
duces  tecum.  Tannis  v.  St.  Cyre,  21 
Ala.  449.  So  Avhere  a  bond  given  to 
secure  the  claims  of  A.  and  divers 
others,  was  traced  into  the  hands  of 
A.,  and  A.  subsequently  assigned  all 
his  claims  and  demanus  to  B.  and  C, 
and  search  was  made  for  the  bond 
among  the  papers  of  B.  only,  it  was 
held  not  to  be  such  evidence  of  the 
loss  of  the  bond  and  a  diligent  search 
for  it  as  to  justify  the  admission  of 
secondary  evidence  of  its  contents. 
Kimball  v.  Bellows,  13  N.  H.  58.  So 
where  a  subpoena  duces  tecum  was 
served  three  or  four  days  before  the 
trial,  on  a  lessee,  requiring  him  to 
produce  his  lease,  and  he  was  sworn 
as  a  witness,  and  stated  that'  he  had 
not  had  time  to  search  all  his  papers 
to  find  the  lease,  but  that  he  had 
made  some  search  in  the  most  prob- 
able places;  that  he  might  have  de- 
stroyed it,  but  he  did  not  recollect  to 
have  done  so;  that  he  had  not  seen 
it  for  a  year,  etc.,  it  was  held  that  the 
loss  of  the  lease  was  not  sufficiently 
proved  to  authorize  the  admission  of 
parol  evidence  of  its  contents.  Mc- 
Neely  v.  Rucker,  6  Blackf.  (Ind.)  391. 
In  Hogsett  v.  Ellis,  17  Mich.  351,  it 
was  held  erroneous  to  allow  a  party 
claiming  land  under  an  execution  sale 
to  give  parol  evidence  of  the  affidavit 
and  bond  required  to  give  the  court 
jurisdiction,  and  other  papers  filed  in 
the  case,  after  merely  showing  by  the 


Sec.  8.] 


Best  and  Secondary  Evidence. 


23 


there  are  several  places  of  deposit,  all  should  be  searched.^  If  the 
instrument  ought  to  have  been  deposited  in  a  public  office,  or  filed 
in  a  certain  place  in  the  usual  course  of  business,  it  will  generally 
be  sufficient  to  search  for  it  there.^    But  where  it  may  be  in  either 


justice  who  rendered  the  judgment 
that  he  delivered  the  docket,  and,  he 
believed,  the  files  also,  to  his  succes- 
sor; that  he  had  looked  for  the  files 
and  could  not  find  them,  and  by  his 
successor  that  he  was  very  certain  he 
had  not  received  the  files,  but  that  he 
had  not  searched  for  them. 

=  Richards  v.  Lewis,  11  C.  B.  1035; 
Rex  V.  Morton,  4  M.  &  S.  48.  But 
■where  the  paper  was  last  seen  in  the 
possession  of  a  person  who  lives  in 
another  State,  and  a  diligent  search 
has  been  made  for  it  in  the  place 
where  it  ought  to  be  if  in  the  State, 
secondary  evidence  of  its  contents  is 
admissible.  Clifton  v.  Lilley,  12  Tex. 
130. 

'  Rex  V.  Stourbridge,  8  B.  &  C.  96 ; 
M'Gahey  v.  Alston,  2  M.  &  W.  20(i ; 
Farnley  v.  Worthington,  1  M.  &  G. 
491. 

Search  for  a  lost  deed  may  be  suffi- 
cient to  authorize  secondary  proof  of 
its  contents  where  search  was  made 
in  the  last  known  place  of  its  deposit 
and  inquiry  was  made  of  the  only  per- 
sons who  had  access  to  it.  Kenniff  v. 
Caulfield,  140  Cal.  34,  73  Pac.  803. 

As  a  general  rule,  if  the  loss  of  a 
paper  is  relied  on  to  account  for  its 
non-production,  the  fact  of  loss  is  not 
established  without  proof  of  diligent 
search  where  the  paper  is  most  likely 
to  be  found,  and  the  particular  char- 
acter of  the  search  must  be  shown. 
Where  it  appears  that  its  custodian 
was  not  the  party  seeking  its  probate, 
but  was  a  third  person,  who  cannot  be 
compelled  to  produce  the  paper,  the 
rule  will  be  relaxed  as  to  diligence  of 
search;  but  enough  should  be  shown 
to  reasonably  satisfy  the  court  that 
the  paper  is  not  voluntarily  withheld 
by  the  party  offering  to  prove  it.  Las- 
ter  V.  Blaekwell,  128  Ala.  143.  30  So. 
663. 

If  a  defendant,  when  applied  to  for 
a  deed,  denies  having  it  in  his  pos- 
session, and  expresses  his  belief  that 
it  is  in  the  register's  office,  where  an 
ineffectual  search  is  made  for  it,  and 
also  in  the   office   of   a   lawyer,   who 


once  had  it  in  his  possession,  a  suffi- 
cient predicate  is  laid  for  proof  of 
the  deed  by  a  certified  copy,  and  no 
notice  to  the  party,  to  produce  the 
deed,  is  necessary.  Shields  v.  Boyd, 
15  Ala.  818.  To  authorize  secondary 
evidence  of  the  contents  of  an  execu- 
tion, issued  by  a  justice  of  the  peace, 
it  is  sufficient  to  show,  by  the  jus- 
tice, that  he  cannot,  after  diligent 
search,  find  it  in  his  office,  and  has 
not  seen  it  since  the  last  term  of  the 
circuit  court,  when  it  went  before  the 
jury  as  evidence  in  another  cause,  ac- 
companied by  the  testimony  of  the 
circuit  clerk  that  he  has  made  dili- 
gent but  unsuccessful  search  for  it 
among  the  files  of  his  office  contain- 
ing the  trial  papers  of  the  last  term. 
Johnson  v.  Powell,  30  Ala.  113. 

In  Vermont  the  court  will  not  pre- 
sume that  a  deed  of  lands  has  been  re- 
corded, or  require  the  party  to  search 
the  records,  before  resorting  to  oral 
evidence  of  the  contents  of  the  deed. 
If  the  opposite  party,  in  whose  pos- 
session the  deed  is  presumed  to  be,  is 
out  of  the  State,  notice  to  his  counsel 
to  produce  the  original  is  sufficient  to 
warrant  the  introduction  of  secondary 
evidence  of  its  contents.  Mattacks  v, 
Stearns,  9  Vt.  326. 

It  is  sufficient  to  show  loss  of 
tickets  that  they  were  turned  over  to 
a  railway  superintendent,  whei-e  its 
general  passenger  agent  testified  that 
the  accounting  department  of  the 
company  had  not  been  able  to  find 
them  and  that  it  was  supposed  they 
had  been  destroyed.  Chiles  v.  South- 
ern Ry.,  69  S.  C.  327,  48  S.  E.  252. 

In  Beall  v.  Bearing,  7  Ala.  124,  it 
was  held  that  an  unsuccessful  at- 
tempt to  take  the  deposition  of  a  non- 
resident, in  whose  possession  a  deed 
was  last  known  to  be,  to  establish  its 
existence,  contents,  and  loss,  is  equiv- 
alent to  a  demand  of  the  deed,  and 
that  where  it  was  of  ancient  date, 
and  as  such  would  not  probably  be 
preserved  a  great  length  of  time,  as 
a  bill  of  sale  of  slaves,  such  an  at- 
tempt,   and    inquiry    of   persons   who 


24f  EviDEisrcE.  [Chap.  1 

of  two  or  more  places^  aii  the  places  should  be  searched,  and  if  it 
may  be  in  the  custody  of  either  of  two  or  more  persons,  inquiry 
should  be  made  of  all  of  them.^  If  the  person  entitled  to  the  cus- 
tody of  the  paper  is  dead,  inpuiries  should  be  made  of  his  personal 
representatives,  and  if  it  relates  to  his  real  estate,  of  his  heirs  also.* 
The  person  in  w^hose  possession  a  written  instrument  was  last  traced 
must  be  produced  unless  this  is  shown  to  be  impossible,  in  which 
ease  search  among  his  papers  must  be  proved,  if  that  can  be  made. 
Search  must  be  made  with  the  utmost  good  faith  and  be  as 
thorough  and  vigilant  as  if  the  rule  were  that  all  benefit  of  the 
paper  would  be  lost  unless  it  be  found.-^**  It  is  not  necessary  that 
the  search  should  have  been  recent,  if,  at  the  time  when  it  was 
made,  it  was  thorough  and  diligent,  and,  in  one  case,^^  it  was  held 
sufficient,  although  made  three  years  before,  although  the  court 
said  it  w^ould  have  been  more  satisfactory  if  the  papers  had  been 
again  examined ;  and  in  a  Pennsylvania  case^"  it  w^as  held  that  a 
search  made  more  than  one  year  before  the  trial  is  not  sufficient. 

Sec.  9.  Requisites  of  Notice  to  Produce  Paper  in  Possession  of 
the  Adverse  Party. 

When  any  written  instrument  is  in  the  possession  or  under  the 
control  of  the  adverse  party,  secondary  evidence  cannot  be  given  of 
its  contents,  unless  a  reasonable  notice  is  served  upon  him,  or  his 
attorney,  to  produce  it,^  and  the  party  neglects  or  refuses  to  do  so.^ 

were  supposed  to  know  of  it,  was  suf-  Bridge  Co.  v.  Applegate,  13  Ind.  339; 

ticient  proof  of  diligence  to  let  in  sec-  Turnpike    Co.    v.    Whiting,    10   Mass. 

ondary  evidence.  327 ;  Myer  v.  Barker,  6  Binn.   ( Penn  ) 

«Hall    V.    Bland,    3    M.  &    G.  247;  228. 

Cruise    v.    Clancy,    6    Ir.    Eq.    552;  ^  Narragansett     Bank     v.     Atlantic 

Ploxton  V.  Dare,  10  B.  &  C.  17;  Tay-  Silk  Co.,  3  Met.  Mass.)    282;   Loring 

lor  on  Ev.    (1st  ed.)    307.  v.     Whittemore,     13     Gray     (Mass.), 

» Rex  V.  Pidlehinton,  3  B.  &  A.  460.  228 ;    Cooper   v.   GranberrV,   33   Miss. 

'"Prussing  v.  Jackson,  208  111.  85,  117;   Fraux  v.  Fraux.  2  N.  J.  L.  166; 

69  N.  E.  R.  771.  Jackson  v.   Livingston,   7   Wend.    (N. 

"Fitz  V.  Rabbits,  2  M.  &  R.  60.  Y. )    136;   Sheldon   v.   Wood,   2   Bosw. 

''Porter    v.    Wilson,    13    Penn.    St.  (N.    Y.)    267;      Faribault    v     Ely,   2 

541.  Dev.   (N.  C.)   L.  67;   Sally  v.  Geiiiter, 

■Webster  v.  Clark,  30  N.   H.   245;  13    Rich.     (S.    C.)     72;      Maxwell    v.. 

Reading  R.   R.  Co.  v.  Johnson,  7   W.  Light,    1    Call    (Va.),    117;   Riggs   v. 

&   S.    (Penn.)    317;   Waring  v.   War-  Taylor,  9  Wheat.   (U.  S.)   S3;   Bright 

ren,    1   John.    (N.   Y.)    340;   Com.   v.  v.  Young.  15  Ala.  112;  Rowley  v.  Doe, 

Parker,  2  Cush.   (Mass.)   212;   Dennis  6  Blackf.   (Ind.)    143;   Smith  v.  Reed, 

V.   Barber,   6   S.   &   R.    (Penn.)    426;  7  Ind.  242;   Greenough  v.   Shelden.  9 

Pond  v.  Lockwood,  8  Ala.  667;   Dean  Iowa,  503;   McDowell  v.  Hall,  2  Bibb 

V.    Borden,    15   Tex.    298;      Anderson  (Ky.),    610;    Bank    of    Kentucky    v. 


Sec.  9.]      Best  and  Secondary  Evidence.  25 

The  notice  to  produce  must  be  served  a  reasonable  time  before 
•the  trial,  and  the  question  as  to  what  is  a  reasonable  time  will  de- 
pend upon  the  circumstances  of  the  case,  the  distance  at  which  the 
party  lives  from  the  place  of  trial,  or  from  the  place  where  the 
paper  is  kept,  and  his  power  to  produce  it.'     Thus,  where  the 
party's  counting-house  was  near  the  court-house,  notice  to  produce 
his  books,  given  the  evening  before  the  trial,  was  held  to  be  reas- 
onable;' and  the  same  day,  where  the  party  lived  near  the  court- 
house f  and  the  day  before,  even  where  the  paper  was  in  the  pos- 
session of  a  person  eighty  miles  away  f  and  several  days  before, 
where  the  party  lived  out  of  the  State  ;^  and  even  on  trial,  if  the 
paper  is  in  court  f  and  generally  the  sufficiency  of  the  notice,  both 
as  to  matter  and  the  time,  rests  in  the  discretion  of  the  court  in 
view  of  all  the  circumstances.^    One  notice  given  in  the  same  suit 
is  good,  although  the  action  is  not  tried  for  years  afterwards,^"  and 
even  upon  a  new  trial  of  the  action.''     But  a  notice  entitled  in 
another  cause  to  produce  books  in  evidence,  merely  filed  in  the 
present  cause,  without  proof  of  service,  raises  no  inference  against 
the  party  to  whom  the  notice  is  addressed.'^ 

The  notice  should  be  in  writing,'^  but,  unless  the  statute  or  rules- 
of  court  otherwise  provide,  there  is  no  reason  why  a  verbal  notice 
is  not  sufficient.'-'  If  the  notice  is  in  writing,  it  may  be  directed 
either  to  the  party  or  his  attorney,'^  and  may  be  served  on  either, 
or  may  be  left  with  the  attorney's  clerk  at  his  office,  or  at  the 
dwelling-house  of  the  party,  in  the  hands  of  his  servant  ;'^  and  if 

McWilliams,    2    J.   J.   Marsh.    (Ky.)  not    in    court.     Durkee   y.    Leland     4 

SVMcQueen  v.  Sandel.  15  La.  Ann.  Vt.   612;   Barker  v.   Bar_ker     14  ^\is. 

140       Lowell   V.   Flint,   20   Me.   401;  131;   Burtm  v.   Kane,   1,    id.  37 

Thayer   v.   Middlesex   Mutual    Insur-  « Cummings  v    MoKinney,  5  111.  o7, 

ance  Co.,   10  Pick.    (Mass.)    326.  -Gilmore  v.  Wac  e,  Anth.     NY.) 

^^hreve  v    Dulaney,   1    Cr.    (U.   S.  64;      Jackson   v.    Shearman,   b   John. 

C   C  )   499;   Hammond  v.  Hopping,  13  (N.  Y.)    19:   Patten  v.  Goldsborough, 

Wend.    (N.  Y.)    505;   Jeflford  v.  Rin-  9  S.  &  R.   (Penn  )   47 

o'nirl    fi   Aln    544  "Hope  v.  Beadon,  17  Q.  B.  209. 

^♦Shreve;-    Dulanev,  ««/e.  -  Allender    v.     Vestry    of     Trinity 

^Buckner   v.   Morris,   2   J.   J.  Mar.  Church,  3  Gill   (Md.),  166. 

(Kv  )     1"^1  ''Cummings   v.   McKinney,   ante. 

«Cadv"v'  Hough,  20  111.  43.  ^^  Houseman   v.  Roberts,  5  C.  &  P. 

'  Jefford  V.  Ringed,  6  Ala.  644.  394  ;      Late.  v.  \^;inter,  3  T._  R.  306 ; 

*Board,  &c.,  v.  Finnemore,   1  N.  Y.  Hughes  v.  Budd,  8  pwyl._31o. 

L    24'^-    \t\vell  V    Miller,  6  Md.   10;  '=  Brown  v.  Littlefield,  /   Uend.   (N. 

B'rown'v.    Oshell.    11    Ala.    109;  Mc-  Y.)    454;   Divers  v.   Foulton    8   G.  & 

Pherson   v     Rathbone,    7    Wend.    (N.  J.   (Md.)    402;   Logan  v.  Patterson,  1 

Y.)   216;   Anonymous,  Anth.   (N.  Y.)  Blackf.   (Ind  )   327. 

199.     But  a  notice  given   during  the  >"  Doe   v.   Martin,    1   M.  &   R.   242; 

trial  is  not  sufficient,  if  the  paper  is  Evans  v.  Swett,  Ry.  &  M.  &3. 


26  Evidence.  [Cliap.  1 

it  is  served  on  both,  a  bad  service  upon  one  will  not  invalidate  the 
notice  to  the  other. ^^  The  notice  is  sufficient  if  it  specifies  the 
paper  desired  with  sufficient  certainty  to  indicate  what  paper  is 
meant.^^  Thus,  notice  was  given  to  an  attorney  of  the  defendant 
to  produce  on  the  trial  a  certain  letter  written  by  the  plaintiff  to 
the  defendant,  concerning  an  execution  which  was  produced  on  a 
former  trial  in  the  same  cause,  "  and  all  other  papers  in  your 
custody  or  power  relating  to  the  matter  in  controversy  in  this 
cause."  It  was  held  that  the  notice  was  sufficiently  explicit  to  ap- 
prise  the  attorney  that  the  execution  was  one  of  the  papers  which 
he  was  called  upon  and  expected  to  produce,  especially  when  it  was 
shown  that  on  such  former  trial  the  letter  and  execution  had  been 
produced  by  the  defendant's  attorney  himself,  and  he  must  have 
known  that  it  was  the  principal  paper  wanted.^^  A  notice  to  pro- 
duce "  all  letters  written  by  plaintiff  to  defendant  relating  to  the 
matters  in  dispute  in  this  action,"^"  or  "  all  letters  w^ritten  to,  and 
received  by,  plaintiff  between  1837  and  1841,  both  inclusive,  by 
and  from  the  defendants,  or  either  of  them,  and  all  papers,  etc., 
relating  to  the  subject-matter  of  this  case,"^^  has  been  held  suf- 
ficient to  let  in  secondary  evidence  of  a  particular  letter  not  other- 
wise specified.  So  a  notice  to  produce  "  all  accounts,  papers  and 
WTitings  in  any  way  relating  to  the  matters  in  question  in  this 
case  ''  sufficiently  particularizes  a  written  account  of  the  work 
done  by  the  plaintiff,  delivered  to  the  defendant,  and  admitted  by 
him  to  be  correct. ^^  And  in  a  more  recent  case  a  notice  to  produce 
^'  all  letters  relating  to  your  tenancy  of  a  room,  etc.,  was  held  suf- 
ficient to  include  a  letter  w^hich,  with  the  plaintiff's  reply,  consti- 
tuted the  tenancy. ^^  The  notice  must  not,  however,  be  too  general, 
as  "  all  letters."^^  In  an  early  English  case^^  it  was  held  by  Best, 
C.  J.,  that  a  notice  ta  produce  "  all  letters,  paj^ers  and  documents 
touching  or  concerning  the  bill  of  exchange  mentioned  in  the 
declaration^  and  the  bill  sought  to  be  recovered,"  did  not  suf- 

"  Hughes  V.  Budd.  ante.  =^  Morris  v.  Hauser,  id.   392,   Lord 

"Bogart  V.  Brown,  5  Pick.  (Mass.)  Denmax,  C.  J. 

18;  Bemis  v.  Charles,  1  Met.  (Mass.)  "Rogers  v.  Custanee,  2  M.  &  Rob. 

440;   Walden   v.    Davison,    11    Wend.  179. 

(N.  Y. )   65.                       *  -' Convbeare    v.    Farries,    L.  R.,    5 

"Walden  v.  Davison,  11  Wend.  (N.  Exch.  16. 

Y.)   65.  "Gardner  v.  Wright.   15   L.   T.   N. 

'"Jacob  V.   Lee,   2   M.   &    Rob.   33,  S.  325;     Jones  v.  Edwards,  McCl.  & 

Patteson,  J.  Y.  139. 

"  France  v.  Lucy,  Rv.  &  M.  341. 


Sec.  10.]  Best  and  Secondary  Evidence.  27 

ficiently  describe  a  notice  of  dishonor  sent  by  the  plaintiff  to  tlie 
defendant.  But  this  decision  is  not  consistent  with^  the  more 
recent  cases  cited  above.  If  the  title  of  the  cause  is  misdescnbed 
in  the  notice,  it  has  been  held  bad.^«  But  in  that  case  no  title  at 
all  was  necessary,  and  there  were  other  grounds  of  decision ;_  nor 
was  there  in  that  case  any  gTOund  for  supposing  that  the  misde- 
scription  could  mislead.  In  a  later  case,  where  the  notice  was  en- 
titled in  a  wrong,  court,  it  was  considered  sufficient.  Notice  to 
produce  a  letter  purporting  to  enclose  an  account  is  sufficient  notice 
to  produce  the  account.^^ 

It  is  generally  not  desirable  to  enter  into  a  minute  description 
of  the  paper  or  papers  covered  by  the  notice,  because  if  any  ma- 
terial errors  were  to  creep  into  the  particulars  the  party  might  urge 
with  possible  success  that  he  had  been  misled  thereby.  If  enough 
is  stated  in  the  notice  to  induce  the  party  to  believe  that  a  par- 
ticular instrument  will  be  called  for,  it  is  sufficient. 

The  question  whether  there  is  sufficient  evidence  that  the  op- 
posite party  has  the  papers  involved  in  the  notice,  where  they  are 
not  such  as  should  be  in  his  possession,  is  for  the  court. 

The  fact  of  the  service  of  the  notice  must  be  proved,  and  as  to 
this  the  mere  statement  of  counsel  is  not  sufficient.^' 

Sec.  10.  When  Notice  to  Produce,  is  unnecessary. 

There  are  several  instances  in  which,  although  the  writing  is  in 
the  hands  of  the  opposite  party,  no  notice  to  produce  it  is  iieoes. 
sary,  as  a  preliminary  to  letting  in  secondary  evidence  of  its  con- 
tents. 

These  exceptions  to  the  general  rule  are : 

1st  Where  the  instrument  is  in  the  hands  of  the  adversary,  and 
that  tendered  in  proof  is  either  a  duplicate  or  counterpart,  and 
the  part  offered  wus  executed  hy  him  or  hy  some  person  through 
whom  he  claims} 

"TTnrvev  v   Morgan,  2  Stark.  19.  being   the    exact    counterpart    of    the 

»llar\ey  \.  J^iO's'^"'  -,^\,-     .    ttt        ^ther    one   being   sent   to   the   person 
"Lawrence  v.  Clark,   14  M.  &  W.       ^U^^^J^^^  ^^^  g^^  ^^1^^^.  ^^^^^1,,^  ^y 

^^^s-T.„„„,i  ,,   -nrnnP    0  W    R.  536.  the   writer,   each   is   an   original,   and 


""•  -.^  n  TTT    Tj    KQA  tlip   writer    each   is   an   original,   aiiu 

«Engall  V.  Druce,  9  \^    R.  536.  e   ^^^jtei     ea  ^^    .^^   .^^  ^^. 

»•  Rogers  v.  Custance   anfe  ,1TL\^..  .nvtv  w-ho  retained  it, 

'"Hervey  v.  Mitchell,  2  M.  &  K.  ooo. 
•^Landt    v.    McCullough,    206    111. 
14,  69  N.  E.  107. 

ijf  two  letters  are  Written  at  the 
same   time   to  the  same   person,   one 


iSre'/v  St  S%  M  &  R.  366.      dene,  by  the  party  \vl,o  retained  it 

.:??!■  r"""^''' "'  "'■  r;:';,-^te"e""*e'°„ttr"s;Lr^ 

"'if'two  fetterl'are  .-titten  at  the      EuLll,  24  Barb.   (N.  Y.)  404. 


28 


Evidence. 


[Chap.  1 


2d.  Whe7'e  the  instrument  to  he  proved  is  itself  a  notice,^  as  a 
notice  to  quit/  or  of  the  dishonor  of  a  bill/  where  tlie  action  is 
brought  upon  the  bill,  but  not  otherwise.^ 

3d.  Where  from  the  nature  of  the  action,  or  indictment,  the 
party  must  know  that  he  will  he  charged  with  the  possession  of  the 
instrument.^ 

Thus  in  an  action  of  trover  for  the  conversion  of  a  bond/  or 
other  writing/  or  in  a  prosecution  for  stealing  a  document  no 
notice  to  produce  is  necessary/  and  this  is  so  even  though  the  de- 
fendant offers  to  produce  the  document,^'^  In  an  action  for  dam- 
ages for  not  delivering  a  telegram  this  rule  was  applied/^  as  also 
in  an  action  of  assumpsit  against  a  carrier  for  the  non-delivery  of 
written  instruments.^^ 

4th.  In.  odimn  spoUatoris,  notice  need  not  he  given  to  the  op- 
posite party  to  produce  a  paper  of  which  he  has  fraudulently  or 
forcihly  ohtained  possession}^ 


'  Notice  to  produce  a  notice,  is  not 
requisite  to  let  in  evidence  of  its  con- 
tents. Atwell  V.  Gi-ant,  11  Md.  101; 
Central  Bank  v.  Allen,  16  Me.  41; 
Fairbault  v.  Ely,  2  Dev.  (N.  C.)  L. 
67;  Eagle  Bank  v.  Chapin,  3  Pick. 
(Mass.)  180;  Falkner  v.  Beers,  2 
Doug.  (Mich.)  117;  Christy  V.  Home, 
24  Mo.  242;  Leavitt  v.  Simes,  3  N. 
H.  14;  Morrow  v.  Commonwealth, 
48  Penn.  St.  305;  Kine  v.  Beaumont, 
3  B.  &  B.  291. 

^'Jory  V.  Orchard,  2  B.  &  P.  41; 
Calling  V.  Frederick,  6  B.  &  C.  398; 
Doe  V.  Somerton,  7  Q.  B.  58;  Phil- 
lipson  V.  Chase,  2  Camp.  111. 
•  *  Swain  v.  Lewis,  26  M.  &  R.  261; 
Kine  v.  Beaumont,  ante;  Auckland 
V.  Pearce,  2  Camp.  601.  The  cases 
overrule  Langdon  v.  Hulls,  5  Esp. 
156,  and  Shaw  v.  Markham,  Peake, 
165. 

"Lanauze  v.  Palmer,  M.  &  M.  31. 

"  Reliance  Lumber  Co.  v.  Western 
Union  Tel.  Co.,  58  Tex.  394;  44  Am. 
Rep.  622;  State  v.  Mayberry,  48  Me. 
218;  Keller  v.  Savage,  20  Me.  199; 
Rose  v.  Lewis,  10  Mich.  483;  Hart  v, 
Robinet,  5  Mo.  1 1 ;  Neally  v.  Green- 
ough,  25  N.  H.  (5  Fost.)  325;  Ham- 
mond V.  Hopping,  13  Wend.  (N.  Y.) 
505;  Hardin  v.  Kretsinger,  17  Johns. 
(N.  Y.)   293;   Edwards  v.  Bonneau,  1 


Sandf.  (N.  Y.)  610;  Forward  v.  Har- 
ris, 30  Barb.  N.  Y.)  338;  Pickering 
v.  Myers,  2  Bailey  (S.  C),  113j^Ham- 
ilton  v.  Rice,  15  Tex.  382;  Dean  v. 
Border,  15  id.  299. 

^Hays  V.  Riddle,  1  Sandf.  (N.  Y.) 
248. 

*  Calling  V.  Frederick,  ante, 

°  Rex  v.  Aickles,  1  Lea.  297n.;  Rex 
V.  Brennan,  3  Cr.  &  Dix.  109;  Com. 
V.  Messinger,  1   Binn.    (Penn.)   373. 

'"Whitehead  v.  Scott,  1  M.  &  Rob. 
2. 

"  Reliance  Lumber  Co.  v.  Western 
LTnion  Tel.  Co.,  ante.  See  Western 
Union  Tel.  Co.  v.  Hopkins,  49  Md. 
327,  contra;  but  the  question  does  not 
seem  to  have  been  much  considered  by 
the  court. 

'^^  Jolly  v.  Taylor,  1  Camp.  143. 
Under  this  rule  it  has  been  held  that 
if  an  action  is  brought  upon  a  writ- 
ten contract,  which  is  fully  described 
in  the  declaration,  and  the  contract 
is  in  the  possession  of  the  defendant, 
the  plaintiff  may  introduce  secondary 
evidence  of  its  contents  without  pre- 
viously giving  a  special  notice  to  the 
defendant  to  produce  it.  Dana  v. 
Conant,  30  Vt.  246. 

i^Doe  V.  Ries,  7  Bing.  724;  Leeds 
V.  Cook,  4  Esp.  256. 


S€c.  11.]  Best  and  Secondary  Evidence-  29 

5th.  Where  the  party  or  his  attorney  has  admitted  the  loss  of 
the  paper  or  denies  having  it,''  because  iu  such  case  the  uotice 
would  be  nugatory.  _  .     ,     •    , 

But  the  party  cannot  excuse  himself  from  giving  notice  by  intro- 
ducing evidence  to  show  the  destruction  of  a  document  which  has 
been  traced  into  the  possession  of  his  adversary,  because  the  docu- 
ment may  still  be  in  existence,  and"  his'  opponent  may  m  any  event 
dispute  the  fact  of  its'  destruction.'^ 

Sec.  II.  Effect  of  Notice  to  Produce  Papers. 

A  paper  is  not  made  evidence  by  a  notice  calling  for  its  pro- 
duction, and  the  party  calling  for  it  may  afterwards  waive  its 
production.'     Nor  does  it  become  evidence  for  the  other  party, 
~  unless  from  its  legal  character  it  is  entitled  to  be  used  as  such; 
and  it  must  be  proved  by  the  person  who  offers  it  in  like  manner  as 
if  he  himself  had  produced  it.    But  if  the  person  producing  it  is  a 
party  to  the  instrument,  or  claims  a  beneficial  interest  under  it,  it 
is  prim^  facie  to  be  taken  to  be  duly  executed,  and  may  be  read 
without  proof  of  its  execution.^    The  refusal  of  a  party  to  produce 
l>ooks  or  papers,  upon  notice  given,  does  not  warrant  the  presump- 
tion that,  if  produced,  they  would  show  the  facts  to  be  as  alleged 
hy  the  party  giving  the  notice.    The  only  effect  of  such  refusal  is 
that  parol  evidence  of  their  contents  may  be  given;  and  i±  such 
secondary  evidence  is  imperfect,  vagiie,  and  uncertain  as  to  dates 
sums,  etc.,  every  intendment  and  presumption  shall  be  against  the 

^^Safe  Deposit  &  Trust  Co.  v.  Tur-       105,  75  N.  W.  115,  71  Am.  St.  Rep. 
..er,  98  Md  22   55  A^J023    1027  ;  How       4G5  ^  ^^   ^  ^^    ^^ 

V.    Hal     14    East     2/6;   Rex   ^^    Ha  ^^.^^^^  ^^   ^^^^  ^^ 

Tl'^^  \a-  189     Foster  r  Pointer    9  duce  a  written  document  or  other  evi- 

l\%    L    ^^IticXvro^^^^^^^  dence   called   for   by   his   opponent  is 

C.  &  P-.718-     ^^11^^    °  vf,     thP   id-  only  a  circumstance  weighing  heavily 

ters  .which   the   other   paitj,  the   ad  on  y  ^^^^  ^^^  ^.^_ 

dressee,  '^-ies  having  ^-eceived    is  un^       ^^^^  ^L  Necessity  of  some  in- 

si^sf 34  £:tio^  r?^s  krs^tSJ^sjri^rit't^^ 

rt^  ^en  ^^^t  £hl?ey ^r^t  ^^^'s^  ^ 

■the  hands  of  the  other  party  he  can-  ^l'?' \  "  j^f^'^^^^^^^    i  Esp.  210. 

not  offer  secondary  evidence  of  it  un-  ^aj^i^^  Kitchen        l..p^^^  ^ 

less  he  has  previously  given  notice  to  „,„^>"°'^;;,    Kitchen,  ante. 

produce     even     though     the      party  ^^f^^l^^^^^\:  tS^^^  ^\y^,],,  (JJ.  S.) 
charged  with   having  the   instrument  I^^'^jf^%^-  ^^^ger,   12  Johns.    (N. 

ttr^^&a%"^^r  O'sStTI  t^.  ^t2f3f  ^JaCson  %.  kii^^sley,  17  id. 


30 


Evidence. 


[Chap.  ,1 


party  who  might  remove  all  doubt  by  producing  the  higher  evi- 
dence. Some  general  e'\ddence  of  such  parts  of  their  contentsi  as 
are  applicable  to  the  case  must  first  be  given  before  any  founda- 
tion is  laid  for  any  inference  or  intendment  on  account  of  their 
non-production.^  The  refusal  of  a  party  to  produce  papers,  upon 
notice,  as  well  as'  the  failure  of  the  party  giving  the  notice  to  use 
them,  if  produced,  is  a,  matter  for  observation  to  the  jury  f  and  if 
the  papers' are  shown  to  be  in  the  possession  or  subject  to  the  con- 
trol of  the  party  upon  whom  the  notice  is  served,  the  failure  to  pro- 
duce them  will  warrant  the  court  in  instructing  the  jury  that  they 
may,  from  such  failure,  presume  that  the  papers  or  books,  if  pro- 
duced, would  operate  unfavorably  to  his  cause.^  Xotice  to  pro- 
duce a  paper  will  not  entitle  the  person  giving  it  to  cross-examine 
a  witness  as  to  its  contents,^  except  after  refusal  to  produce,^  If 
the  party  refuses  to  produce  the  paper  for  the  use  of  the  party  giv- 
ing the  notice,  he  cannot  afterwards  use  the  original  either  to  con- 
tradict the  secondary  evidence,^  or  to  show  that  there  are  attesting 
witnesses  who  ought  to  be  called,^"  or  to  refresh  the  memory  of 


*  Life  &  Fire  Ins.  Co.  v.  Mechanics' 
Ins.  Co.,  7  Wend.  (N.  Y.)  31;  see, 
also,  Hanson  v.  Eustace,  2  How.  (U. 
S.)  653;  Jewell  v.  Center,  25  Ala. 
498:  Hunt  v.  Collins,  4  Iowa,  56; 
Spring  Garden  Mut.  Ins.  Co.  v.  Evans, 
9  Md.  1.  Though,  where  a  party  has 
in  his  possession  a  deed  or  other  in- 
strument necessary  to  support  his 
title,  and  he  refuses  to  produce  it, 
and  attempts  to  make  out  his  title  by 
other  evidence,  such  refusal  raises  a 
strong  presumption  that  the  legiti- 
mate evidence  would  operate  against 
him,  yet  this  rule  is  not  applicable  to 
such  documents  as  he  has  no  right  to 
give  in  evidence  without  the  consent 
of  the  adverse  party,  the  only  effect 
of  the  refusal,  in  such  case,  being  to 
authorize  the  adverse  pariy  to  give 
secondary  evidence  of  the  contents  of 
the  documents  withheld.  Merwin  v. 
Ward,  15  Conn.  377.  When  a  party 
refuses  to  produce  books  and  papers 
which  are  shown  to  be  in  his  pos- 
session, his  opponent  may  give  sec- 
ondary or  parol  proof  of  their  con- 
tents; and  if  such  secondary  evidence 
is  imperfect,  vague,  and  uncertain  as 
to  dates,  sums,  boundaries,  etc.,  every 
intendment  and  presumption  shall  be 


against  the  party  in  possession  of  the 
higher  evidence,  and  refusing  to  pro- 
duce it.  Rector  v.  Rector,  8  111.  105; 
Shortz  V.  Unangst,  3  Watts  &  S. 
(Penn.)  45.  Of  course,  in  order  to 
make  secondary  evidence  admissible 
because  of  a  failure  to  produce  a 
writing  it  must  be  shown  that  the 
Mriting  is  actually  in  a  party's  cus- 
tody, or  at  least  is  one  of  which  he  is 
entitled  to  the  custody.  Thus,  notice 
to  the  opposite  party  to  produce  a  fi. 
fa.  is  not  foundation  sufficient  to  ad- 
mit a  copy  iu  evidence.  Bell  v. 
Chandler,  23  Ga.  356. 

^Bate  V.  Kinnay,  1  C,  M.  &  R.  41; 
see  Sayer  v.  Kitchen,  1  Esp.  235,  as 
to  failure  of  party  giving  notice  to 
use  the  papers  when  produced ;  and 
see,  also,  Wilson  v.  Bower,  1  C,  &  P. 
10;  Wharam  v,  Routledge,.  5  Esp. 
235, 

"Clifton  V,  United  States,  4  How. 
(U,  S.)   242. 

^Graham  v.  Dyster,  2  Stark.  23. 

^Id.. 

'  Thompson  v.  Hodgdon,  12  Ad.  & 
El.  135. 

^"Edmonds  v.  Challis,  7  C.  B.  413 j 
Jackson  v.  Allen,  3  Stark.  74. 


Sw.  11.]  Best  axd  Secondary  Evidence.  31 

^tnes.^B,"  or,  it  seems,  for  any  purpose,^  but  is  in  effect  bound  by 
any  legal  and  satisfactory  evidence  given  on  the  other  side  relat- 
ing tllereto,^^  unless  he  has  some  sufficient  and  satisfactory  excuse 
for  not  complying  with  the  notice. 

Where  a  party  on  request  furnishes  to  his  opponent  for  use  m 
a  trial  a  copy  of  a  letter  he  sent  to  his  opponent  he  has  waived  his 
rioht  to  a  production  of  the  original.^*  A  copy  of  a  copy  of  an 
in^'strument  is  not  admissible  after  the  failure  of  the  party  having 
the  instrument  on  due  notice  to  produce  the  original  m  the_ absence 
of  some  evidence  to  show  why  the  copy  made  from  the  original  was 

not  produced.^^  .  i      .-l^ 

The  courts  of  common  law,  as  well  as  equity,  may  order  the 
production  for  inspection  of  writings  in  the  possession  of  one 
party  to  a  suit  for  some  special  reason,  as  where  there  is  reason  to 
.uspect  that  the  document  is  forged.^«  A  party,  however,  may  not 
be  ordered  to  produce  all  his  books  upon  the  mere  suspicion  that 
they  might  possibly  contain  some  evidence  favorable  to  the  op- 
posite party,  and  without  pointing  to  any  particular  part  oi  all  ol 
the  books  over  which  the  suspicion  was  supposed  to  hover.  Ihe 
court,  will  not  tolerate  a  fishing  expedition  to  be  carried  out  m 
this  way."  An  order  for  the  production  of  books  will  be  granted 
only  against  those  having  their  control  or  custody.'' 

In  order  to  render  a  notice  operative  to  let  in  secondary  evi- 
dence, it  must  be  shown  that  the  original  instrument  is  m  the 
hands  of  the  opposite  party  or  of  those  in  privity  with  him.  The 
nature  of  this  evidence  must  vary  according  to  the  nature  of  the 
instrument,  and  where  it  belongs  exclusively  to  the  party,  slight 
evidence  will  suffice.^«  If  the  instrument  has  been  delivered  to  a 
third  person,  in  privity  with  the  party,  notice  to  the  latter  is  suf- 

"Till  V.  Ainsworth,  Wi.de,  C.  J.  ^^^'In    "  ''^''""'  '''  ""'"  '''' 

MS.,  Bristol,  1874           o  v   J^  V   A7  ^^'state  v.  Cohen,  108  Iowa  208,  78 

"Collins  V.  Garbon,  2  F   &  F.  47.  w   857    75  Am    St   Rep   213. 

-  Where  a  party  has  an  >nf  ^e"^  ^\^Dolk\     m]   180  Penn.   St.   14, 

in  his  possession  which  he  refuses  on  UocW  y     uo 

notice  'to    Pvoduce     the    ot^er    party  ^^.^^/^ J',,f  ctke'  126  c'al.  235,  58 

S^rilil^h    -^l^^iSi       ^^^^fli^Lf^^rSi^;^^^  Hollan., 
T.:^Z  ^eaf:?i;e"ca^n  t^erBisU       107  Ala^  412,  18  So.  170,  54  An.  St. 

21^-  2o'Henry  v.  Leigh,  3  Camp.  502. 


S2  Evidence.  [Chap.  1 

£cient/^  as  also  is  notice  to  his  attorney.^^  Notice  to  a  party  to 
produce  a  check,  or  a  note  which  has  been  paid,  which  is  in  the 
hands  of  his  banker,  is  sufficient,^^  or  to  produce  papers  belonging 
to  him  which  are  in  the  hands  of  his  attorney.^''  An  attorney  may 
be  compelled  to  produce  his  client's  papers  and  camiot  rely  on  his 
privilege.  The  rule  was  formerly  otherwise,  but,  as  the  privilege 
is  that  of  the  client  and  not  of  the  counsel,  when  by  change  in  the 
law  the  client  could  be  compelled  to  testify  as  a  party  and  produce 
papers,  the  attorney  was  also  subject  to  the  same  rule.^^  Where  a 
deed  is  shown  to  be  delivered  to  a  person  since  deceased,  and  the 
liouse  in  which  he  lived  is  occupied  by  members  of  his  family,  a 
notice  on  them  to  produce  the  deed  may  be  sufficient  to  admit  sec- 
ondary evidence  of  its  contents.^® 

If,  at  the  time  the  notice  was  served,  the  paper  was  in  the  hands 
of  the  party,  he  cannot  afterwards  get  rid  of  it  so  as  to  avoid  the 
effect  of  the  notice.^^  So  copies  may  be  put  in  evidence  by  the 
plaintiff  where  the  originals  were  destroyed  by  fire  while  in  the 
hands  of  the  defendant  after  he  had  been  given  notice  to  produce 
them,^^  But  if  the  plaintiff  becomes  non-suited  in  the  action  after 
the  service  of  the  notice,  and  after  the  non-suit  the  party  assigns 
the  paper  to  a  third  person,  and  upon  a  second  trial  the  plaintiff 
again  serves  notice  upon  him  to  produce  the  paper,  secondary  evi- 
dence of  its  contents  will  not  be  admissible  f^  and  the  same  has 
been  held  where,  before  notice  was  served,  the  paper  was  delivered 
to  a  third  person,  under  whom  the  defendant  justified  in  an  action 
of  trespass,  and  it  was  held  that  a  subpoena  duces  tecum  to  such, 
third  person  was  necesary.^'' 

Sec.  12.  What  Secondary  Evidence  of  Writings  Sufficient. 

It  is  said  that,  as  a  general  rule,  there  are  no  degTees  in  second- 
ary evidence,^  and  that  upon  proof  of  the  loss  or  destmction  of  a 
writing,  or  upon  the  failure  of  the  opposite  party  to  produce  it 

"Baldnev  v.  Ritchie,  1  Stark.  338.  ==' Uzzell  v.  Horn   (S.  C,  1905),  51 

"Taplin'v.    Atlev,    3    Bing.    164;  S.  E.  253. 

Suter  V.  Burrell,  2  H.  &  N.  867.  "Knight  v.  Martin.  Gow.  104:  Sin- 

"  Partridge    v.    Coates,    By.    &    M.  clair  v.  Stevenson,  1  C.  &  P.  585. 

156.  "  Eudgear  v.  United  States  Leather 

^'^  Irwin  V.  Lever,  2  F,  &  F.  295.  Co..  206  111.  74.  69  N.  E.  R.  30. 

"Jones  V.  Reilly,  174  N.  Y.  97,  66  "Knight  v.  Martin,  ante. 

N.  E.  R.  649.  »» Evans  v.  Sweet,  Ry.  &  M.  183. 

^Carpenter  v.  Dame,  10  Ind.  125. 


Sec.  12.]  Best  and  Secondary  Evidence.  33 

upon  notice,  the  contents  of  the  writing  may  be  proved  even  by 
parol/  and  the  party  is  not  bound  to  show  that  no  copy  of  the  writ- 
ing exists.  But  this  rule  would  seem  not  to  apply  to  documents 
of  which  certified  copies  or  transcripts  may  be  had.^  He  must 
produce  satisfactory  evidence  of  the  contents  of  the  writing,  and 
there  can  be  no  question  but  that  a  well  authenticated  copy  is  the 
most  satisfactory  substitute  for  the  original  document.  But  no 
«opy  whatever  is  admissible,  unless  its  accuracy  is  sworn  to,  or 
there  is  some  presumption  attached  to  it  from  which  its  accuracy 
may  be  presumed,^  as  is  the  case  in  reference  to  a  very  old  instru- 
ment purporting  to  be  a  copy  or  abstract  of  a  conveyance,^  when  it 
can  be  traced  to  the  custody  of  some  gTantee  of  the  lands,  but  not 
where  it  comes  from  a  custody  unconnected  with  the  lands.^  A 
copy  of  a  letter  taken  by  a  copying  machine,  although  still  only  a 
copy,  will  be  presumed  to  be  correct.'^  And  such,  also,  is  the  rule 
as  to  entries  made  by  a  deceased  clerk  in  a  letter  book,  when  it  is 
shown  that  in  the  course  of  business,  letters  relating  to  the  business 
of  the  plaintiff  were  copied  in  the  letter  book  by  such  clerk.^  The 
rule  allowing  the  production  of  copies  or  parol  evidence  where  the 
original  is  lost  or  destroyed,  or  is  in  the  possession  of  the  opposite 
party,  who,  upon  notice,  neglects  to  produce  it,  applies  to  all  classes 

'Granger  V.  Warrington,  8  111.  299;  the    contents   of   the   original    record, 

Jackson  v.  Cullam,  2   Blackf.    (Ind.)  and  must  be  produced  or  its  absence 

288;   Young  v.   Buckingham,   5   Ohio,  explained,   before   parol   evidence   can 

485;      Gore   v.    Elwell.   22    Me.   442;  be   heard.    Southern   Ry.   Co.   v.   Sey- 

Clark   V.   Trindle,   52   Penn.   St.  492;  mour,  113  Tenn.  523,  83  S.  VV.  674. 
Thayer   v.    Stearns,    1    Pick.    (Mass.)  *  Fisher  v.  Samuda,  1  Camp.  190. 

109;  Denton  v.  Hill,  4  Hayw.  (Tenn.)  =  Price  v.  Woodhouse.  3  Exch.  616; 

73;   Small    v.    Pennell,    31    Me.    267;  Buller's  N.  P.  254;   Bullin  v.  Michel 

Sanders    v.    Sanders,    24    Ind.     133;  2   Price,   399;   Williams  v.   Wilcox,  8 

Jones  V.  Fayles,  5  Mass.  101.  Ad.  &  El.  314. 

'  Where    a    certificate    of    entry    on  « Potts    v.    Durant.    3    Amst.    789 ; 

land   is   recorded  and  lost  a  certified  Paddock  v.   Whitcomb.  G  Exch.   601. 
copy   is   the   next    best   evidence   and  '  Hadin   v.   Murray,    3   Camp.   228; 

parol   evidence   as   to   it   will    not   be  Simpson  v.  Thorneton,  1  F.  &  F.  452. 

received.     Martin  v.   Brand,   182   Mo.  In  Sturge  v.  Buchanan,  10  Ad.  &  El. 

116,  81  S.  W.  443.     Where  it  appears  598,   it  was   held   that  a   letter   book 

that  a  transcript  of  a  lost  record,  pre-  containing  •opies  of  letters  which  the 

vious  to  its  loss,  in  a  proceeding  au-  defendant    wrote    to   a    third    person, 

thorized    by    law,    has    been    filed    in  consented  to  admit  under  a  notice  to 

-another  court,  and  this  is  known  or  produce    the    letters,    would    be    pre- 

should  be  known  to  the  party  offering  sumed   to  contain  true  copies  of  the 

to  prove  the  record,  the  presumption  letters. 

is  that  it  remains  in  that  court,  and  » Pritt  v.  Fairclough,  3  Camp.  305; 

it  is  the   best  secondary  evidence  of  Hagedorn  v.  Reed,  3  id.  377. 


34 


Evidence. 


[Chap.  1 


of  instruments,  as  records  of  judgments/  executions/"  wills/^  ac- 
count books/^  writs  or  other  process,"  bonds,"  and  other  special- 
ties,^^ contracts  or  agreements,^^  deeds,"  patents,^^  incorporation 
papers,^^  or  indeed  any  instrument  in  writing  which  has  been  lost 
or  destroyed,^"  or  as  to  parts  of  such  instruments  which  have  been 
mutilated  so  as  to  be  illegible.^^ 

There  are  four  classes  of  copies  which  maj  be  used  to  prove  the 
contents  of  documents,  and  their  value  as  such  proof  is  in  the 
ord'er  in  which  they  are  given :  Exemplified^  Office,  Certified  and 
Examiiied.  Exemplified  copies  are  those  which  are  attested  under 
the  great  seal,  or  under  the  seal  of  the  court  in  which  the  record  is 
preserved. 

An  office  copy  is  a  copy  made  by  the  officer  having  the  custody 
of  the  document  in  the  same  court,  and  in  the  like  cause,  and  is 
equivalent  to  the  original  document  of  which  it  is  a  copy.^^  la 
this  country,  however,  ''  office  copies  "  include  all  certified  copies 
made  by  officers,  whether  of  courts  or  otherwise,  who  by  law  are 
made  certifying  officers,  and  copies,  made  by  whom,  and  certified. 


'Jackson  v.  Collam,  2  Blackf. 
(Ind.)  228;  Pruden  v.  Allen,  2.3  Pick. 
(Mass.)  184;  Sanders  v.  Sanders,  24 
Ind.  133;  Small  v.  Pennell  31  Me. 
267;  Lane's  Will,  2  Dana  (Ky.), 
106;  Clark  v.  Trindle,  52  Penn.  St. 
492;  Farmers'  Bank  v.  Gibson,  6  id. 
51 ;  Young  v.  Buckingham,  5  Ohio, 
485. 

'»  Ellis  V.  HuflF,  29  111.  449. 

"Lane's  Will,  ante;  Smith  v.  Car- 
ter, 3  Rand.    (Va.)    169. 

"  Keaton  v.  Davis,  18  Ga.  457  n. 
Lost  accoun*  books  proved  by  trial 
balances  drawn  by  bookkeeper.  Safe 
Deposit  &  Trust  Co.  v.  Turner,  78 
Md.  22,  55  A.  1023,  1027. 

"Fowler  v.  Moore,  4  Ark.  570; 
Brown  v.  Richmond,  28  Vt.  583;  Al- 
len V.  State.  21  Ga.  217;  Derret  v. 
Alexander,  25  Ala.  265;  Bartlett  v. 
Hunt,  17  Wis.  214;  Com.  v.  Raank, 
8  Cush.   (Mass.)   210. 

"  Stakes  v.  Prescott,  4  B.  Men. 
(Kv.)    37. 

"Kelly  v.  Riggs,  2  Ratt.  (Conn.) 
126. 

"Gwattney  v.  Wheeler,  26  Ind. 
415;  Morrison  v.  Chapin,  97  Mass. 
72. 

"In  McBurnev  v.  Cutler,   18  Barb. 


(N.  Y.)  203,  it  was  held  that,  to 
prove  the  execution  of  an  alleged  lost 
deed,  it  is  not  necessary  to  prove  by 
a  witness  that  he  remembered  having 
seen  a  seal  on  it;  the  fact  might  be 
shown  by  other  and  circumstantial 
evidence;  and  evidence  that  the  in- 
strument was  executed,  and  intended, 
and  purported  to  convey  lands,  and  in 
connection  with  it,  evidence  of  tiie 
declarations  of  the  grantor  that  he 
had  conveyed  lands,  is  evidence  proper 
to  go  to  a  jury,  and  is  sufficient  to 
authorize  them,  if  the  testimony  is 
believed,  to  find  that  the  instrument 
was  under  seal. 

^*  Long  V.  Davis,  4  Mich.  140. 

"  Secondary  evidence  of  lost  incor- 
poration papers  need  not  be  so  full 
as  that  they  may  be  reproduced,  but 
it  is  sufficient  if  it  shows  that  the  re- 
quirements of  the  statutes  were  ful- 
filled. People  V.  Pike,  197  111.  449^ 
64  N.  E.  R.  393. 

=°  Adams  v.  Guice,  30  Miss.  397; 
People  V.  Dennis.  4  Mich.  609;  Orm 
V.  Cook,  31  111.  283. 

"  Senterfeit  v.  Shealy  (S.  C,  1905)^ 
51  S.  E.  142;  Ful'lis  v.  Griffith^ 
Wright    (Ohio),  303. 

"Lucas  V.  Fulford,  2  Burr.  1179. 


iSec.  12. J  Best  and  Secondaky  Evidence.  35 

are  made  admissible  in  evidence.     In  other  words,  "  office  copies  " 
include  "  certified  copies." 

A  certified  copy  is  a  copy  made  by  an  officer  having  the  custody 
of  a  document  or  of  a  record,  and  certified  by  him  to  be  correct. 
Wliere  the  statute  makes  such  person  a  certifying  officer,  and  pro- 
vides that  copies  certified  by  him  shall  be  evidence,  such  copies,  in 
degree,  stand  next  to  the  original  instrument. 

An  examined  copy  is  a  copy  of  an  instrument,  verified  by  the 
oath  of  a  witness  who  has  compared  it  with  the  original,  word  for 
word  and  line  for  line,  and  swears  that  it  is  correct.^^  The  copy 
must  be  exact,  and  must  not  contain  abbreviations  which  are  not  in 
the  original,^''  and  some  evidence  must  be  given  to  show  that  it  was 
copied  from  the  original,^^  as  a  copy  of  a  copy  is  never  admissible,^^® 
except  in  those  instances  where  the  copy  from  which  the  copy  is 
made  possesses  the  essential  elements  of  the  original,  as,  a  copy 
from  a  certified  copy  made  by  a  certifying  officer,^^  or  from  a  press 
copy  of  a  letter,^^  because  in  the  latter  instance  the  signature  is  in 
the  handwriting  of  the  person  writing  it,  thus  making  it  possible 
to  authenticate  the  genuineness  of  the  instrnment  from  which  the 
second  copy  was  made. 

For  instances  in  which  copies  are  admissible,  and  showing  what 
kind  of  copies  must  be  used,  and  how  proved,  see  chap.  XIX, 
"  Documentary  Evidence." 

"Eeid  V   Mareison,  1  Camp.  469.  a  recorded  deed   (Stetson  v.  Gulliner, 

"Rex.  v.'  Christian,  C.  &  M.  388.  2    Cuch.    [Mass.],    494),    nor    to    one 

« Adamthwayte    v.    Sym.    4    Camp.  sworn   to  be  correctly  made   from   a 

3-2  press   copy   of   a   letter,    Goodrich   v. 

^''Brown  v.  Warren,  &c.,  R.  R.  Co.,  Weston,  102  Mass    362. 

5   Gray    (Mass.),   35.     But  this   rule  "  Stetson  v.  Gulliner,  anie 

does  not  apply  to  a  certified  copy  of  '» Goodrich  v.  Weston,  ante. 


CHAPTER  II. 
Parol  Evidence  as  to  Writings. 

Section  13.  General  rule. 

14.  Latent  ambiguities,  what  are,  rule  as  to. 

15.  To  correct  mistaken  description  of    devisee. 

16.  Party's  direct  statements  of  intention. 

17.  To  apply  description  to  real  estate. 

18.  Patent  ambiguity  or  indefiniteness. 

19.  Conduct   of   parties   at  the    time  of  and  after  the  execution  of  a 

writing. 

20.  To  explain  or  vary  legal  effect  of  unambiguous  writing. 

21.  Prior  and  contemporaneous  independent  agreements.     Incomplete    ■ 

contracts.  | 

22.  Receipts,  releases  and  tickets.  . 

23.  Surrounding  circumstances. 

24.  To  prove  collateral  matters. 

25.  To  show  that  writing  never  legally  existed.      (Fraud,  illegality, 

escrow,  etc.) 

26.  Consideration. 

27.  Mistake. 

28.  Waiver,  alteration  or  discharge  of  contract. 

29.  To  show  warranty. 

30.  To  show  that  writing  apparently  absolute  is  a  security  or  trust 

instrument. 

31.  Agency  or  signature  in  representative  capacity. 

32.  When  an  independent  contract  is  entered  into  as  an  inducement 

to  the  execution  of  the  principal  contract. 

33.  Several  writings  may  be  looked  at  to  determine  the  real  contract 

and  intention  of  the  parties. 

34.  As  to  third  parties. 

35.  Judicial,  corporate  and  official  records. 

36.  Assignments. 

37.  Negotiable  instruments. 

38.  Bills  of  lading. 

39.  Bills  of  sale. 

40.  Leases,  deeds,  and  mortgages. 

41.  Custom  or  usage. 

A.  Parol  evidence  of  usage,  admissible  when. 

B.  Qualities  and  proof  of  binding  usage. 

C.  Need  not  necessarily  be  general.  < 

D.  Must  be  established  by  instance  of  its  application. 

E.  General  usage,  how  established.     By   one  witness. 

F.  Mere  conflict  of  evidence  as  to,  does  not  defeat. 

G.  Effect  of  local  or  trade  usage. 
H.  Usage  in  particular  market. 

I.  Usage  must  be  reasonable  and  legal. 

J.  Usage  as  a   means   for  ascertaining  the  meaning  of  words 

and  phrases. 
K.  Rule  when  ^^■ords  have  well  defined  meaning. 
L.  Usage  may  add  incidents  to  contracts.     Illustrations. 
M.  Rule  when  ambiguitv  is  created  by  parol  proof. 
(36) 


Sec.  13.]  Parol  Evidence  as  to  Writin-gs.  37 

Sec.  13.  General  rule. 

The  so-called  "'  parol  evidence  "  rule  consists  of  a  collection  of 
various  rules  of  substantive  law  and  one  rule  of  evidence.  The 
Statute  of  Frauds  and  the  Statute  of  Wills  and  the  presumption 
that  parties  in  putting  anything  in  writing  intended  to  embrace  the 
whole  transaction  are  the  most  familiar  examples  of  substantive 
law  embraced  in  the  "  rule  "  while  the  rule  of  evidence  included 
in  it  is  that  forbidding  evidence  of  direct  statements  of  the  inten- 
tion of  the  writer  except  in  case  of  equivocation — where  his  lan- 
guage may  apply  equally  well  to  two  or  more  things.^ 

The  "  parol  evidence  "  rule  may  be  shortly  stated,  that,  in  the 
absence  of  any  latent  ambiguity  therein,  parol  evidence  is  not  ad- 
missible to  explain,  vary  pr  contradict  a  written  instriimeiit.  The 
general  rule  is  that  when  an  agreement  is  reduced  to  writing  it,  as 
between  the  parties,  merges  and  overcomes  all  prior  or  contem- 
poraneous negotiations  and  declarations  upon  the  subject,  and  oral 
evidence  is  not  admissible  to  vary,  explain  or  contradict  its  terms, 
for  the  writing  is  conclusively  presumed  to  contain  the  whole  en- 
gagement of  the  parties.  There  are  two  exceptions  to  this  rule, 
the  first  of  which  includes  those  cases  in  which  parol  evidence  has 
been  received,  not  to  vary  or  contradict,  but  to  destroy  written  in- 
struments, for  fraud,  illegality,  want  of  consideration  or  other 
fundamental  inadequacies  upon  the  theory  that  the  written  instru- 
ment was  never  a  valid  and  subsisting  agreement,  and  the  second 
of  which  embraces  those  cases  which  recognize  the  writing  as  ex- 
isting and  valid,  but  regard  it  as  incomplete,  either  obviously  or 
at  least  possibly,  and  admit  parol  evidence,  not  to  contradict  or 
to  vary,  but  to  complete  the  entire  agreement  of  which  the  writing 
was  only  a  part.  Two  essentials  must  accompany  the  second  ex- 
ception. First,  the  writing  must  not  appear,  upon  inspection,  to 
be  a  complete  contract,  embracing  all  the  particulars  necessary  to 
make  a  perfect  agTcement,  and  designed  to  express  the  whole  ar- 
rangement between  the  parties,  for  in  such  a  case  it  is  conclusively 
presumed  to  embrace  the  entire  contract;  second,  the  parol  evi- 
dence must  be  consistent  with,  and  not  contradictory  of,  the  written 
instrument.^     The  Statute  of  Frauds  requires  that  certain  con- 

^  See    Thayer     Prem.    Treatise     on  Albert  v.  Zeifjler,  29  Penn.  St.  50; 

Evidence,  pp.  390-403.  Shankland  v.  Washington.  5  Pet.   (U. 

=  Mead  v.  Dunlevie,  174  N.  Y.   108,  S.)  390;  Peter  v.  Grover,  20  Mo.  363; 

66  N.  E.  R.  658.  Wade  v.  Odeneal,  3  Dev.    (N.  C.)    L. 


38 


Evidence. 


[Chap.  2. 


tracts  shall  be  in  writing,  and  thus,  by  implication,  excludes  all 
evidence  relating  to  contracts  which  are  not  in  writing.^  So,  too, 
in  other  cases,  it  is  the  duty  of  certain  officers  to  record,  in  a  man- 
ner more  or  less  solemn,  what  is  said  or  done,  as  in  the  case  of 
records  of  courts  of  law,  or  depositions  taken  before  magistrates 
in  criminal  cases.  How  far  such  authentic  memorials  are  con- 
clusive is  not  very  well  settled,  but  they  are  certainly  so  in  some 
cases.  It  is  obvious  that  evidence  might  frequently  be  objected 
to  as  infringing  more  than  one  of  these  rules,  and,  where  several 
objections  might  be  good  it  is  not  always  easy  to  see  which  of  the 
two,  in  a  given  case,  forms,  the  ratio  decidendo. 


Sec.  14.  Latent  Ambiguities,  what  are,  rule  as  to. 

Under  the  general  rule  as  stated  sup-a,  it  follows  as  a  matter 
of  course,  that,  whenever  there  is  a  complete  written  agreement 
all  previous  conversations  and  verbal  agreements  of  the  parties  are 
merged  therein,  and  cannot  be  shown  to  alter  or  vary  the  writing^ 


423;  Warren  v.  Crew,  22  Iowa,  315; 
Huffman  v.  Hannuer,  17  N.  J.  Eq. 
269;  Ferguson  v.  Glaze,  12  La,  An. 
667;  Herndon  v.  Henderson,  41  Miss. 
584;  Smith  v.  Higbee,  12  Vt.  113; 
Irwin  V.  Ivers,  7  Ind.  308 :  Wynn  v. 
Cox,  5  Ga.  373:  Young  v.  Frost,  5 
Gill  (Md.),  287:  Smith  v.  McCall,  1 
McCord  (S.  C),  220:  Reed  v.  Jones, 
8  \Yis.  392;  Hoxie  v.  Hodges,  1  Ore- 
gon, 251  :  Lenhard  v.  Vischer.  2  Cal. 
37:  Richardson  v.  Comstook.  21  Ark. 
69;  Grundy  v.  Edwards,  7  J.  J.  Mar. 
(Ky. )  67:  Robinson  v.  Mogandv,  28 
Ill.'423 :  Becklev  v.  Munson.  22  Conn. 
299;  West  v.  Kelly,  19  Ala.  353; 
Gooch  V.  Cannon.  8 'Mo.  391;  Tits  v. 
Brown.  20  N.  H.  393;  Hall  v.  Adams, 
1  Hill  (X.  Y.),  601.  The  ordinary 
rules  as  to  the  introduction  of  parol 
evidence  to  contradict  a  written  in- 
strument apply  to  an  agreement  be- 
tween Indian  tribes.  Delaware  In- 
dians V.  Cherokee  Nation,  193  U.  S. 
127.  24  S.  Ct.  342. 

'Northrup  v.  Jackson,  13  Wend. 
(N.  Y. )  85;  Lecrov  v.  Wiggins,  31 
Ala.  13:  Lackett  v.  Lobev,  10  La.  An. 
713;  Martin  v.  Duffey,  4  Phil. 
(Penn.)    75. 

'Smith  V.  Higbee,  12  Vt.  113;  Cole 
V.   Spann,    13  Ala.   537;    Herndon  v. 


Henderson,  41  Miss.  584;  Vaughn  v. 
Lynn,  9  Md.  870;  Dean  v.  Mason,  4 
Conn.  428;  Chadwick  v.  Perkins,  8 
Me.  399:  Crosier  v.  Acor,  7  Paige,  (N 
Y.)  Ch.  137  :  French  v.  Turner.  15  Ind 
59;  Walker  v.  Engler,  30  Mo.  130 
Mead  v.  Steger,  5  Port.  (Ala.)  498 
Cox.  V.  Bennett,  13  N.  Y.  L.  165;  Lo 
gan  V.  Bond.  13  Ga.  192;  Downie  v, 
White,  12  Wis.  176;  Stevens  v.  Coop 
er,  1  John.  (N.  Y.)  Ch.  425;  Cald 
well  V.  May,  1  Stew.  (Ala.)  425. 
Gelpcke  v.  Blalce,  15  Iowa.  387;  Cin 
cinnati,  &c..  R.  R.  Co.  v.  Peaver.  28 
Ind.  502;  Walker  v.  Engler,  30  Mo. 
130.  A  contract  which  the  parties 
intended  to  but  did  not  make,  cannot 
be  shown  in  place  of  the  one  which 
they  did  make,  Sanford  v.  Howard, 
29  Ala.  684;  Glendale  Woolen  Co.  v. 
Protection  Ins.  Co..  21  Conn.  19:  nor 
can  a  verbal  agreement  differing 
from  a  written  one.  entered  into  be- 
fore or  at  the  time  the  written  agree- 
ment was  executed,  be  given  in  evi- 
dence to  supersede  or  vary  the  writ- 
ten contract  in  any  of  its  terms,  Cin- 
cinnati. &c.,  R.  R"!  Co.  v.  Pearce,  28 
Ind.  502;  Gelpcke  v.  Blake,  15  Iowa, 
387;  Jack  v.  Naber,  15  id.  450; 
Downie  v.  White,  12  Wis.  176;  not 
can  evidence  of  a  party's  admission  be 


Sec.  13.] 


Pakol  Evidence  as  to  Writings. 


39 


or  to  show  the  intention  of  the  parties/  except  when  there  is  a 
latent  ambiguity  in  the  contract.^ 

Where  one  conveys  his  "  entire  interest  in  the  estate  of  his 
father  and  it  appears  alinnde  that  his  father  was  then  living  and 
that  the  gTantor  therefore  had  no  interest  in  his  estate,  this  creates 
a  Latent  ambiguity  as  to  the  estate  conveyed  which  may  be  ex- 
plained by  parol."  Under  a  contract  for  building  an  "  artesian 
well,"  evidence  was  properly  introduced  to  show  that  the  word 
"  artesian  "  indicated  a  well  from  which  the  water  flowed  naturally 
without  artificial  pressure,'  and  a  contract  for  delivery  of  "shares'' 
of  stock  mav  be  explained  by  oral  evidence  that  a  special  kind  of 
stock  called  "  pool  shares,"  which  were  not  to  be  issued  for  five 
years,  was  intended."  Where  a  contractor  had  a  contract  to  "  make 
a  roadway,"  parol  evidence  was  inadmissible  to  show  that  he  was 
bound  to  make  it  of  wood,  as  the  contract  contained  no  ambiguity 
on  the  subject.  The  written  contract  left  him  the  right  to  build 
the  roadway  of  any  ordinary  material  and  to  limit  him  to  wood 
would  be  a  variation  of  the  contract.^     It  is  improper  to  vary  a 


«hown  to  vary  a  writen  contract, 
Fitz  V.  Brown,  20  N.  H.  393; 
Hale  V.  Handy,  36  id.  206;  nor 
can  the  acts  of  parties  be  proved  to 
show  what  construction  they  placed 
upon  an  ambiguous  contract,  Giles  v. 
Conistock,  4  N.  Y.  270;  the  writing 
itself,  in  such  cases,  is  the  exclusive 
evidence  of  the  intention  of  the  par- 
ties. Miller  v.  Fitchorn,  31  Penn.  St. 
252 

^pullen  V.  Le  Roy,  10  Bos.  (N.  Y.) 
38;  Bedford  v.  Flowers,  11  Humph, 
(Tenn  )  242;  Ellmaker  v.  Franklin 
Ins.  Co.,  5  Penn.  St,  183;  Pilmer  v. 
Branch  State  Bank,  16  Iowa,  321. 

=  Gallagher  v.  Black,  44  Me.  99.  In 
order  to  properly  understand  the  ap- 
plication of  this  rule,  it  should  be 
understood  that  there  are  two  kinds 
of  ambiguities— La ffnf  and  Patent.  A 
latent  ambiguity  is  one  which  does 
not  appear  upon  the  face  of  the  in- 
strument, but  arises  from  an  appli- 
cation of  the  instrument  to  the  sub- 
ject-matter of  the  contract,  or  where 
it  may  be  applied  to  either  of  two 
persons  or  things,  or  may  be  con- 
strued in  either  of  two  ways.  A  pat- 
ent ambiguity  is  one  which  appears 
upon  the  face  of  the  instrument,  and, 


from  a  mere  perusal,  shows  that 
something  is  omitted  which  must  be* 
added  before  it  can  be  ascertained 
what  is  meant.  Parol  evidence  is  ad- 
missible to  explain  latent  ambiguity. 
McNair  v.  Sales,  .5  Minn,  43.5  ;  Hart- 
well  V.  Canman,  10  N.  J.  Eq.  128 ;  Hall 
V.  Davis,  36  N.  H.  569 ;  Wilson  v.  Rob- 
ertson, 7  J.  J.  Mar.  (Ky.)  78;  Pat- 
rick V.  Grant,  14  Me.  233 ;  Shuetze  v. 

Bailey,  40  Mo.   69;    Spears  v.  Ward, 

48  Ind.  541;   Clark  v.  Hart,  49  Ala. 

86;    Wilson   v.    True,    36     Cal.   606; 

Mastens  v.  Freeman,  17  Ohio  St.  373; 

Crawford     v.     Brady,     35     Ga.     184; 

Hotchkiss    V.    Barnes,    34    Conn.    27; 

Doyle  V.  Estornet,  13  La.  An.  318.  But 

not   to  explain    a   patent    ambiguity. 

Panton  v.  Tefft,  22  111.  366;   Mithofi" 

V.  Bryne,  20  La.  An.  363;   Rawyer  v. 

Martin,  6   Rand.    (Va.)    525;    Morris 

V.  Edwards,  1  Ohio,  184. 

*  Miles   V.   Miles,    78   Miss.  904,    30 

So.  2. 

=^  Hattiesburg  Plumbing  Co,  v.  A.  E. 

Carmichael  &  Co.,  80  Miss.  66,  31  So. 

536. 

"Williams  v.  Ashurst  Oil,  Land  & 
Development   Co.,    144   Cal.,    619;    78 

Pac.  28. 

^Trustees   of    Town    of    Southamp- 


40 


Evidence. 


[Chap.  2. 


contract  for  the  sale  of  cotton  of  a  certain  description  by  evidence 
of  a  parol  agreement  that  the  cotton  specified  in  the  contract  was 
to  be  raised  on  the  lands  of  one  of  the  parties.^  Where  a  contract 
provides  that  cars  shall  be  loaded  as  thev  were  the  previons  year,. 
"  viz.,  loaded  full,  with  the  sides  built  up,"  etc.,  parol  evidence 
is  admissible  to  show  how  they  were  loaded  the  previous  year,  the 
videlicet  evidently  not  being  intended  to  be  conclusive.®  Where  a 
plumber's  contract  called  for  ''  all  plumbing  "  to  be  accepted  by 
the  city  plumbing  inspectors,  but  the  specifications  did  not  in- 
clude a  certain  pipe,  oral  conversations  of  the  parties  at  and  be- 
fore the  signing  of  the  contract  is  admissible  to  show  whether 
such  pipe  was  included  in  the  contract.^*^  Where  an  assignee  of 
oil  rights  agreed  to  drill  to  the  ''  fourth  sand  "  if  he  did  not  find" 
oil  sooner,  the  testimony  of  oil  men  is  admissible  as  to  his  right 
to  ''  shoot "  the  well  by  exploding  torpedoes  in  it  before  reaching 
the  "  fourth  sand."  ^^  Parol  evidence  may  be  admitted  to  show 
that  a  certain  claim  was  intended  to  be  included  within  the  terms 
of  an  agreement  to  pay  ''  claims  of  jDersons  who  have  performed 
labor  upon  or  furnished  material  for  use  in  or  on  said  property."^^ 


ton  V.  Jessup,  173  N.  Y.  84,  65  N.  E. 
R.  949. 

»Forsvth  Mfg.  Co.  v.  Castlen,  112 
Ga.  199,  37  S.  E.  485,  81  Am.  St. 
Rep.  28. 

*  Oliver  v.  Oregon  Sugar  Co.,  42 
Ore.  276.  70  Pae.  902. 

"Hebb  V.  Welsh,  185  Mass.  335;  70 
N.  E.  R.  440. 

"Thorn  Hill  Oil  Co.  v.  Fort  Pitt 
Gas  Co.   (Penn.  1902),  51a,  981. 

"Brown  v.  Markland,  16  Utah, 
360,  52  P.  597,  67  Am.  St.  Rep.  629. 

So.  where  a  farmer  contracted  in 
writing  to  sell  "  his  wool  "  to  a  cer- 
tain person  at  a  certain  price,  it  was 
held  that  evidence  was  admissible 
to  prove  that  "  his  wool  "  meant 
the  wool  in  his  possession  bought 
by  him  of  other  farmers  as  well 
as  wool  of  his  own  growth,  but 
was  not  admissible  to  prove  that  only 
a  limited  quantity  of  such  wool  was 
intended  to  be  bought.  Macdonald  v. 
Longbottom.  1  E.  &  E.  987;  see  also 
Buxton  v.  Rust.  L.  R.  7  Exch.  280. 
In  this  case,  evidence  of  previous  con- 
versations between  the  parties  was 
admitted  to  show  that  the  plaintill 
had  some  wool  of  his  own  clip,  and 


some  which  he  had  purchased,  which 
he  was  offering  for  sale.  The  object 
of  the  evidence  was  to  show  in  wliat 
sense  the  defendant  used  the  term 
"my  wool, "  by  showing  by  their 
previous  negotiations  that,  at  the 
time  the  oft'er  by  letter  was  made,  lie 
did  not  refer  to  the  wool  from  tlie 
plaintiff's  clip  merely,  but  to  all  the 
seller  had  on  hand.  Lord  Campbell 
said:  "There  cannot  be  the  slightest 
objection  to  the  admission  of  evi- 
dence of  previous  conversations, 
which  neither  alters  nor  adds  to  the 
written  contracts,  but  merely  enables 
us  to  ascertain  wlwit  was  the  subject- 
matter  referred  to  therein."  In  a 
Vermont  case  (Hart  v.  Hammett.  18 
Vt.  127)  there  was  a  sale  of  "win- 
ter-strained lamp  oil  "'  equal  to  a  sam- 
ple exhibited.  The  evidence  disclosed 
that  there  were  two  kinds  of  oil  of 
the  kind  sold,  one  sperm  oil.  the  other 
ichale  oil,  the  latter  of  which  was  in- 
ferior in  quality.  The  court  held  that 
evidence  was  admissible  to  show  that 
in  conversation  at  the  time  the  eon- 
tract  iras  made  this  was  explained  to 
the  purchaser,  and  that  he  was  then 
informed   that   it   was  not  sperm  oiL 


Sec.  13.]  Pakol  Evidence  as  to  Writings.  41 

And  oenerally  it  may  be  said  that  parol  evidence  is  <^fj^^'f^l 
toULu^y  ancApply  L  s.Aject-mMter  of  iU  contrac,^^  but  no 
where  the  writing  distinctly  defines  the  property  so  as  to  admit  of 


he  was  buying.  In  an  Alabama  case 
(Thorington  v.  Smith,  8  ^\all.  [U. 
S]  1),  during  the  Rebellion,  a  con- 
tract was  entered  into  to  pay  '  dol- 
lars," and  parol  evidence  was  held  to 
be  admissible  to  show  the  circum- 
stances under  which  the  contract  was 
made,  and  that  in  fact,  at  that  time 
and  place,  the  only  "dollars -mue 

were    Confederate    dollars.      But    the 
doctrine  of  this  case  is  very  question- 
able, and  it  is  not  believed  that  the 
courts  would  be  inclined  to  follow  it. 
It  does  not  come  within  the  principle 
of  the  other  cases  cited,  and  it  can- 
not be  said  that  the  evidence  .created 
any  latent  ambiguity.     A  contract  to 
pay  "dollars"   is  a   contract  to   pay 
lawful  money,  and  evidence  is  never 
admissible    to    show   that   it  was   in- 
tended  as   a   contract   to   pay   money 
of  a  particular  kind  or  quality;   and 
the    rule    adopted    in    the    case    cited 
would  overturn  the  whole  law  of  con- 
tracts, and  place  it  within  the  power 
of  a  party   to  completely  nullify  his 
contract    by     showing     that    it    was 
really  a  contract  to  pay  xu  a  worth- 
less   currency.      So,    in    construing   a 
written    contract  -  of     service      under 
which  A.  was  "  to  enter  into  the  em- 
ploy "  of  B.,  or  A.  was  "  to  give  the 
whole  of  his  services  to  B.,"   it  was 
held  that  parol  evidence  was  admis- 
sible  to    show    in    what    capacity    A. 
was  to  serve   (Mumford  &  Gedimg,  7 
C  ■  B    N.  S.  305 ;  Price  v.  Mount,   1 1 
Id    508.),  and  this,  even  though  the 
Statute  of  Frauds  required  a  written 
contract.      Chadwick    v.    Burnley,    12 
W    R.  1077.     The  object  and  ettect  ot 
such  evidence  is  not  to  alter  or  vary 
the    meaning    of    the    contract,    but 
rather   to   develop   and   ascertain   the 
meaning  of  the  term  by  ascertaining 
the    sense    in   which    the    parties    in- 
tended to  use  it.     Thus,  in  a  contract 
for   stone    at    a    certain   price      per 
perch,"    it    being    doubtful    whether 
16V.   or   25  feet  constituted  a  perch, 
and' the  evidence  being  conflicting,  in 
order   to   ascertain    the    intention    of 
the   parties,    the   defendant   was   per- 
mitted to  show  that  the  word  '  perch 


was  not  used  by  either  of  the  parties, 
but  that  they  verbally  agreed  upon 
18  cents  per  cubic  foot  as  the  price 
of  the  stone,  and  that  the  attorney 
employed  to  reduce  the  contract  to 
writing,  of  his  own  motion,  and 
without  instructions  from  either 
party,  made  the  change  from  feet  to 
perch  and  the  price  from  18  cents  per 
foot  to  $4.50  per  perch,  this  being  the 
rate  if  25  feet  is  a  perch;  but  if 
lGi/>  feet  is  a  perch,  the  rate  would 
be  '27  cents  per  foot.  Quarry  v. 
Clements,  38  Ohio  St.  587. 

"Miller  v.  Stevens,  100  Mass.  518; 
Caulkins  v.  Hellman,  U  Hun  (N.  Y.),    , 
330;    Sweet   v.   Shumway,    102   Mass. 
357 ';  .  Bateman   v.   Phillips,    15    East, 
272-   Shortred  v.  Check,   1  Ad.  &  El. 
57;    Stoops  V.   Smith,   100  Mass.  63; 
Gerrish   v.   Towne,    3   Gray    (Mass.), 
82;   Sargent  v.  Adams,  3   id.  72.     It 
is  well  settled  that  parol  evidence  is 
alwavs  admi>^^ible  for  the  purpose  of 
applving  a  written  instrument  to  its 
proper     subject-matter..     Bennett    v. 
Pierce,  28  Conn.  315;  Noonan  v.  Lee, 
2  Black   (U  S.),  499;  Myers  v.  Ladd, 
26  111.  415;  Cary  v  Thomson,  1  Daly 
"(N.  Y.),35;  Almgrenv.  Dutilh,  5  N. 
Y.  28;  Mayor  v.  Butler,  1  Barb.   (N. 
Y  )   325 ;  Waters  v.  Simmons,  7  Jones 
(N.  C.)   L.  541;  Hildebrand  v.  Togie, 
20  Ohio,  147  ;  Morgan  v.  Spangler,  14 
Ohio  St.  102 ;   Barnhart  v.  Riddle,  23 
Penn.   St.  93:   Aldridge  v.  Eshleman, 
46  id    420;  Gould  v.  Lee,  55,  id.  99; 
Ames    V.    St.   Paul,     &c.,     R.   R.   Co 
12  Minn    412.     Thus,  upon  the  trial 
of  an   indictment  for  the  defendant's 
neglect  of   duty    as    overseer   of   the 
Cane    Hill    road,   it   was    held   to   be 
error  to  exclude  parol  evidence  otiered 
to  show  that  the  Cane  Hill  road  was 
the   same  established    by    the  county 
court,  under    a    different   description. 
State  V.   Hapgood,  23  Ark.  553.     So 
where    a    tract    of   land    is    described 
differently    in    different    instruments, 
it  may   be   shown   by   parol   that  tl«> 
different    descriptions     refer     to     the 
same  tract,  the  rule  being  that  extrin- 
sic evidence  may    properly  be  resorted 
to  in  order  to  show  the  usage  of  a    bus- 


42 


Evidence. 


[Chap.  2. 


its  being  applied  thereto  without  the  aid  of  such  proof.^^  So  such 
evidence  is  admissible  to  identify  the  parties  to  an  instrument  or 
record,  as  where  there  are  two  persons  by  the  same  name,  to  show 
which  was  intended  ;^^  or  to  show  that  the  payee  of  notes  is  not  the 
real  party  in  interest,  as  that-a  contract  made  by  A.  in  his  own 
name,  was  made  as  the  agent  of  B  ;^^  or  that  goods  purchased  in 
his  own  name  were  purchased  on  joint  account;"  or  w'ho  is  the 
payee  in  a  promise  to  pay  for  a  charitable  purpose  ;^*  or  that  a  gift, 
although  jointly  to  husband  and  wife,  was  intended  to  operate  only 
as  a  gift  to  the  wife  ;^^  to  show  that  the  parties  in  a  former  suit 
are  the  same  as  the  one  on  trial  f^  or  to  show  the  identity  of  the 
parties  in  one  record  with  those  of  another.^^  So  to  show,  under 
a  guaranty  to  "  J.  H.,  President,"  that  J.  H.  is,  or  was  when  the 
writing  w^as  executed,  the  president  only  of  a  certain  bank,  and 
the  guaranty  will  then  enure  to  that  bank.^^  And,  generally, 
w^here  there  is  sufficient,  on  the  face  of  negotiable  paper,  to  create 
a  doubt  to  whom  the  credit  was  given,  then,  as  between  the  origi- 
nal parties,  parol  evidence  is  admissible  to  remove  that  doubt. 
Thus,  a  signature  "A.  B.,  captain,"  on  a  bill  of  exchange,  not 


iness,  or  the  use  and  nature  of  cer- 
tain kinds  of  property,  viewed  with 
reference  to  its  application,  or  the 
interests  to  which  it  may  be  subser- 
vient. Stewart  v.  Chadwick,  8  Iowa, 
463.  So  parol  evidence  has  been  held 
admissible  to  explain  a  written 
agreement  between  a  canal  company 
and  a  farmer,  so  far  as  to  give  iden- 
tity to  the  subject-matter  of  the  con- 
tract, and  to  apply  it,  Bartsch  v. 
Lehigh  Co.,  4  Rawle  (Penn.),  130; 
to  identify  a  tract  described  in  a  con- 
veyance, Hughes  V.  Sandal,  25  Tex. 
162;  to  identify  the  articles  meant 
to  be  conveyed  by  a  bill  of  sale  con- 
cluding with  the  words:  "meaning 
all  the  farming  tools,  etc.,  now  owned 
by  him,  and  on  said  farm,"  Rugg  v. 
Hale,  40  Vt.  138;  to  identify  mort- 
gaged wood  from  other  wood  piled 
upon  the  same  lot,  Sargeant  v.  Sol- 
berg,  22  Wis.  132;  see  also  Brooks  v. 
Aldrich,  17  N.  H.  443;  to  identify 
the  particular  animals  intended,  un- 
der a  written  contract  for  the  sale 
of  a  certain  number  of  hogs,  Mar- 
shall V.  Gridley,  46  HI.  247 ;  to  show 
the  identical  monument  referred  to 
in    a    deed,    Aflferty    v.    Connover,    7 


Ohio  St.  99 ;  to  identify  a  note  se- 
cured by  mortgage  other  than  its  cor- 
respondence with  the  description  giv- 
en of  it  in  the  condition  of  the  mort- 
gage, Melvin  v.  Fellows.  33  N.  H, 
401 ;  to  show  what  parcel  of  land  fits 
all  parts  of  a  deed  or  other  instru- 
ment. Doe  V.  Roe,  20  Ga.  689;  to 
identify  the  subject-matter  of  a  re- 
corded note  of  a  corporation.  Pope  v. 
Machias,  &c.,  Co.,  52  Me.  535. 

"Pike  V.  Fav,  101  Mass.  134;  Hart 
V.  Hammett,  'l8  Vt.  127;-  Hill  v. 
Rowe,   11  Met.    (Mass.)    268. 

"State  V.  Weare,  38  N.  H.  314; 
Sawyer  v.  Boyle,  21  Tex.  28;  Walker 
V.  Wells,  25  Ga.  141;  Simmons  v. 
Marshall  3  Greene  (Iowa),  502;  Tug- 
gle  V.  McMath,  38  Ga.  648. 

^•^  Lerned  v.  Johns,  9  Allen 
(Mass.),  419;  Oelrichs  v.  Ford,  21 
Md.  489;  Westhaltz  v.  Retaud,  18  La. 
An.  245. 

"Scott  V.  McKinney,  98  Mass. 
344. 

"Hopkins   v.    Upshur,   20   Tex.   89. 

"Dunham  v.  Catham,  21  Tex.  231. 

=°  Shirley  v.   Fearne,   33   Miss.   653. 

"  Garwood  v.  Garwood,  29  Cal.  514. 

"  State  Bank  v.  Peck,  28  Vt.  200. 


Sec.  13.]  Parol  Evidence  as  to  Writings.  43 

clearly  importing  a  liability  of  the  agent  or  of  the  principal,  parol 
evidence  by  the  plaintitf  is  admissible,  the  contract  being  unsealed, 
to  show  that  it  was  intended  to  bind  the  owner,  the  principal,  and 
that  he  had  authorized  the  captain  to  bind  him  in  that  form.^^ 
So  an  administration  which  would  be  deemed  prima  facie  to  be 
granted  upon  the  estate  of  a  father,  may  be  shown  to  be  granted 
upon  the  estate  of  the  son,  the  names  of  the  two  being  the  same.^* 
Where  a  certificate  of  deposit  is  taken  by  a  guardian  in  his  own 
name,  parol  evidence  is  admissible,  on  a  settlement  of  his  accounts, 
to  show  that  the  money  deposited  belonged'  to  the  ward,  and  the 
certificate  is  admissible  to  prove  the  investment.^^  In  an  action  of 
ejectment,  where  the  plaintiff  claimed  under  a  grant  from  the 
State  to  Elias  Nicks  and  by  a  grant  to  himself  from  Eli  Nicks, 
parol  evidence  was  held  admissible  to  show  the  identity  of  the 
person  variously  named. ^^  So  where  the  name  of  the  vendee  in 
the  body  of  the  act  of  sale  was  omitted,  the  notary  and  one  of  the 
witnesses  to  the  act  were  offered  to  prove  that  H.  T.  W.,  whose 
name  was  subscribed,  together  with  that  of  the  vendor^  was  the 
purchaser,  and  it  was  held  that  the  omission  could  be  supplied  by 
such  parol  evidence.^^  The  addition  to  the  name  signed  to  a  con- 
tract, of  the  official  character  of  the  person  so  signing  is  such  an  in- 
dication of  the  representative  character  of  such  signer,  as  will 
warrant  a  resort  to  parol  evidence  to  prove  extrinsic  circumstances, 
such  as,  to  whom  the  consideration  passed  and  credit  was  given, 
the  agent's  authority,  etc.,  by  which  the  respective  liability  of  the 
principal  and  agent  may  be  determined.^* 

This  species  of  evidence  does  not  impugn  the  general  rule,  be- 
cause it  does  not  alter  or  vary  the  terms  of  the  contract,  but  merely 
explains  that  portion  of  it  which  is  still  in  doubt,^^  and  enables 
the  court  to  apply  it,  according  to  the  real  intent  of  the  parties. 
The  circumstance  that  the  langTiage  used  in  a  contract,  which 
is  susceptible  of  either  of  two  constructions,  was  understood  in  one 
sense  by  one  of  the  parties,  and  in  another  sense  by  the  other,  does 

"May  V.  Hewitt,  33  Ala.   161.  ==' Gallagher   v.    Black,   44   Me.    99. 

"Moseley  v.  Mastin,  37  Ala.  216.  In  Graham  v.  Hamilton,  5  Ired.    (N. 

"  Beasley  v.   Watson,   41    Ala.   234.  C.)    L.  428,  it  was  held  that  when  a 

^"Henderson    v.    Hackney,    23    Ga.  writing    is    deficient    in    punctuation, 

383.  and   its   sense   may  be  varied  as   the 

"  Beauvais  v.  Wall,  14  La.  An.  199.  punctuation   is   one   way   or   another, 

"^Smith  V.  Alexander,  31  Mo.  193.  extrinsic     evidence     may     be     intro- 

"  duced  to  explain  its  meaning. 


44  Evidence.  [Chap.  2. 

not  change  the  rule.  In  such  a  case,  the  sense  in  which  the  word 
is  used  in  that  class  of  contracts,  or  in  view  of  the  circumstances 
attending  the  transaction,  must  prevail.^** 

Where  the  terms  of  a  written  contract  are  not  perspicuous,  hut 
are  susceptible  of  two  meanings,  parol  evidence  is  admissible  to 
ascertain  the  intention  of  the  parties,^^  and  to  that  end  it  is  com- 
petent to  show  that  the  words  used  have  by  usage  acquired  a  pecu- 
liar meaning  different  from  their  ordinary  sense,  and  also  to  show 
the  circumstances  attending  the  transaction  and  -the  situation  and 
admissions  of  the  parties  for  the  purpose  of  ascertaining  the  sense 
in  which  they  intended  the  language  used.^^  Tnus,  where  on  the 
fact  of  the  writing  it  is  doubtful  whether  a  guaranty  is  continuing^ 
or  limited  to  a  single  transaction,  evidence  of  the  circumstances 
under  which  the  guaranty  was  given,  the  nature  of  the  business  in 
which  the  credit  was  to  be  used,  the  situation  and  relation  of  all 
the  parties,  and  their  previous  dealings  and  negotiations  which  led 
to  the  giving  of  the  guaranty,  may  be  shown  to  enable  the  court  to 
ascertain  the  true  intent  and  meaning  of  the  parties.^^  So,  too, 
•where  a  bill  is  drawn  by  a  corporation,  addressed  to  its  treasurer 
as  an  individual,  and  accepted  by  him  with  the  addition  of  treas- 
urer, etc.,  a  sufficient  ambiguity  is  thereby  raised  as  to  whether 
his  acceptance  was  designed  to  be  individual,  or  in  his  official 
capacity,  to  let  in  parol  evidence  to  show  the  fact.^* 

Sec.  15.  To  correct  mistaken  description  of  Devisee. 

Where  an  ambiguity,  not  apparent  on  the  face  of  a  written  in- 
strument, is  raised  by  the  introduction  of  oral  evidence,  the  same 
description  of  evidence  is  admitted  to  explain  it;  for  example, 
if  one  devises  to  his  son  John  Thomas,  and  he  has  two  sons  of  the 
name  of  John  Thomas,  evidence  may  be  admitted  to  show  which 
the  testator  intended.^     And  where  the  description  of  the  devisee, 

^See  post,  §41K.  Y.  601:  Field  v.  Miinson.  47  id.  223; 

"Hueske    v.     Bioussard,    55    Tex.  Page     v.     McDonnell.     55     id.     299; 

201;    Mason   v.    Ryas,   26   Kan.   464;  Knapp  v.  Warner,  57  id.  668. 

Knick  V.  Knick,  75  Va.  12.  "  Lafflin,  &c..   Powder   Co.   v.   Sins- 

"  Mason   v.    Ryas,     26    Kan.    464;  heimer,    48    Md.    411;    30    Am.    Rep. 

Knick    V.    Knick,    ante;    Hueske    v.  472;   Bradlee  v.  Boston  Glass  Co.,  16 

Broussard,  ante.  Pick.    (Mass.)    347;    Haile  v.   Pierce, 

"White's   Bank   v.    Meyers,    73    N.  32  Md.  330. 

Y.    335;    29   Am.    Rep.    157;    Heffield  'Per  GiBBS,  C.  J.,  Doe  v.   Chiches- 

V.  Meadows,  L.  R.,  4  C.  P.  595.     See  ter,    4   Dow.    93;    Doe   d.    Morgan    v. 

also  S.  P.  Bridger  v.  Pierson,  45  N.  Morgan,  1  Cr.  &  M.  235;  Goddard  v» 


Sec.  15.]  Parol  Evidence  as  to  Writings.  45 

■or  thing  devised,  is  true  in  part,  but  not  true  in  every  particular, 
■oral  evidence  is  admissible  to  show  the  person  or  thing  intended, 
provided  there  be  enough  on  the  face  of  the  will  to  justify  the  ap- 
plication of  the  evidence.^  Thus,  an  error  in  a  Christian  or  sur- 
name may  be  proved.^  Where  the  will  named  as  legatee  the  "  For- 
eign Missionary  Society,"  evidence  of  the  testator's  church  affilia- 
tions and  previous  donations  was  held  admissible  to  show  that  he 
intended  "  The  Missionary  Society  of  the  Methodist  Episcopal 
Church."'*  A  bequest  to  the  "  Christian  Missionary  Society  of 
this  State  "  may  be  shown  by  extrinsic  evidence  to  be  intended 
for  the  "  Missionary  Society  of  the  Churches  of  Christ  in  In- 
diana."^ 

Where  a  de\^se  was  to  S.  H.,  second  son  of  T.  H.,  but  in  fact  S. 
H.  was  the  third  son,  evidence  of  the  state  of  the  testator's  family, 
and  of  other  circumstances,  was  admitted  to  show  whether  he  had 
mistaken  the  name  or  the  description.^  Where  a  will  devises,  prop- 
erty to  be  divided  equally  between  two  sisters  and  the  children  of 
a  brother,  parol  evidence  that  the  sisters  were  favorites  of  the 
t.estatrix  and  that  the  brother  was  not  is  admissible  to  show  that  the 
sisters  should  take  equally  with  the  family  of  the  brother.'  There 
are  also  other  authorities  for  admitting  evidence  that  the  testator 
was  accustomed  to  misname  a  person,  and  thus  to  show  who  was 
meant  by  him,  although  there  be  a  person  in  existence  whose  name 
corresponds  with  that  in  the  wiU'.^  So  by  "  my  nephew,  J.  G.," 
testator's  wife's  nephew  may  be  shown  to  be  meant,  though  the 
testator  also  had  a  nephew  J.  G.^  Wbere  the  devise  was  to  John 
A.,  grandson  of  T.  A.,  with  a  charge  in  favor  of  "  each  of  the 

Bulaw,   1   Nott.  &  McC.    (S.   C.)    45;  =  Chappell     v.     Missionary    Society, 

Breeding  V.  Taylor,  13  B.  Mon.   (Ky.)  etc.,  3  Ind.  App.  356,  29  N.  E.  924; 

147;    Milling   'v.     Crankfield,     1    Mc-  50    Am.    St.    Rep.    276,    and    note    p. 

€ord   (S.  C),  258;   Clark  v.  Powers,  279. 

45  111.  283 ;   Baker  v.  Talbot,  6  T.  B.  « Le   Chevalier   v.   Huthwaite,   3    B. 

M&n.    (Ky.)    182;    Hembell  v.  White,  &  A.  632. 

2  Overt. '(Tenn.)        ;   Belt  v.  Miller,  'White  v.   Holland,  92  Ga.   216^;    18 

4    H.    &    J.    (Md.)     533;     Dorsey   v.  S.  E.  17;  44  Am.  St.  Rep.  87. 

Hammond,  1  H.  &  J.   (Md.)  201..  » Blundell    v.    Gladstone,     11     Sim. 

'Miller  v.   Travers,  8  Bing.  248-9;  467:    1  H.  L.  C.  778;   Lee  v.  Pain,  4 

Charter    v.    Charter.    L.    R.,    2    F.    &  Hare,  251. 
M.  315;  L.  R.,  7  H.  L.  364. 

^Careless     v.     Careless,     1     Meriv.  "Grant  v.  Grant,  L.  R.,  2  P.  &  M. 

384.  8;   Id.  v.  Id.,  L.  R.,  5  C.  P.  380;   Id. 

*  Amberson's     Estate,      204      Penn.  727 ;    but   see   Wells   v.   Wells,  L.   R., 

397,  54a,  484.  18   Eq.   504. 


46 


Evidence.  [Chap.  2. 


brothers  and  sisters  "  of  the  said  John  A.,  and  it  appeared  that 
there  were  two  grandsons  of  T.  A.,  both  named  J.  A. ;  held,  that 
oral  declarations  of  the  testator  were  admissible  to  show  which  was 
meant,  although  it  also  appeared  that  only  one  of  the  grandsons 
had  several  brothers  and  sisters.^"  In  the  case  of  a  devise  to  tes- 
tator s  niece,  remainder  to  her  three  daughters,  M.  E.,  and  A.,  the 
niece  at  the  time  of  making  the  will  had  two  legitimate  daughters, 
M.  and  A.,  and  one  illegitimate,  E. ;  held,  that  the  claim  of  the 
latter  might  be  rebutted  by  showing  that  the  niece  formerly  had  a 
legitimate  daughter,  E.,  and  that  the  testator  knew  nothing  of  the 
death  of  the  legitimate,  or  the  birth  of  the  illegitimate,  E.^ 

Sec.  1 6.  Party's  direct  Statements  of  Intention. 

Direct  statements  of  the  intention  of  a  party  to  a  solemn  docu- 
ment are  not  admissible  to  aid  m  its  interpretation  unless  in  case 
of  equivocation  where  the  document  applies  equally  well  to  two  or 
more  persons  or  things.  This  exception  is  Avell  settled  in  regard  to 
devisees  under  wills,  following  an  early  English  case,^  but  its  fur- 
tlier  application  has  never  been  clearly  defined  and  it  must  be 
limited  by  the  consideration  that  such  evidence  does  in  effect 
permit  the  substitution  of  oral  for  written  acts  where  the  law  may 
require  the  act  to  bs  in  writing.  Where  there  are  two  persons  in  a 
town  named  C.  H.  Cremer,  and  one  of  them,  is  a  candidate  for 
office  and  the  other  is  not,  and  one  of  them  is  commonly  called 
senior  and  the  other  junior,  it  is  competent  by  parol  evidence  to 
'show  that  ballots  cast  for  C.  H.  Cremer  were  intended  to  be  cast 
for  C.  H.  Cremer,  Sr.,  but  it  is  not  permissible  to  show  that  bal- 
lets east  for  C.  H.  Cremer,  Jr.,  were  intended  for  C.  H.  Cremer^ 
Sr.^  But  this  rule  will  not  let  in  oral  evidence  of  the  intention  of  a 
testator  where  it  can  be  collected  from  the  will  itself  who  was^  in- 
tended.^ 

It  is  the  general  rule  that  parol  evidence  of  the  intention  of  the 
testator  is  inadmissible,  but  evidence  may  be  admitted  to  explain 

"  Allen  V.  Allen,  12  Ad.  &  E.  451.  '  State   v.   Steinborn,   92   Wis.   605,. 

"Thomas  v.   Baynon.   id.   431.  66  N.  W.  798;  53  Am.  St.  Rep.  938. 

'Note  to  Lord  Chevey's  Case,  5  Co.  '' Westlake  v.   Westlake,  4  '  B.  &  A. 

68.     See  also  Hisoocks  v.  Hiscocks,  5       57  ;   Webber  v.  Corbett,  L.  R.   16  Eq. 

M.  &  W.  363,  369:  in  the  Goods  of       515. 
Peel,  L.  R.,  2  P.  &  M.  46 ;  Charter  v. 
Charter,  L.  R.,  7  H.  L.  364. 


S^c.  16.]  Parol  Evidence  as  to  Writings.  47 

the  circumstances  and  situation  of  the  testator  when  the  will  was 
executed.  So  in  a  certain  case  in  Pennsylvania,  where  it  appeared 
that  the  will  offered  was  one  which  had  been  republished  after 
having  been  once  canceled,  and  before  the  list  of  legatees  was  in- 
serted at  republication  the  words  "  or  to  their  heirs,"  and  after 
certain  legatees  the  word  "  deceased  "  was  added  it  was  held  that 
the  conversation  had  with  the  testator  and  the  suggestions  made  to 
him  in  consequence  of  which  he  inserted  the  words  ''  deceased  " 
and  ''  or  to  their  heirs  "  was  admissible  to  show  that  the  legacies 
were  not  intended  to  lapse,  but  to  go  to  the  heirs  of  the  deceased 
legatees.*  A  legacy  to  a  man  *'  free  from  his  present  or  future 
debts  "  was  held  ambiguous  enough  to  allow  the  admission  of  evi- 
dence of  the  intention  of  the  testator  that  certain  notes  of  the  son 
she  'held  should  not  bei  paid.^  The  purpose  and  intent  of  a  debtor 
and  of  a  guarantor  in  procuring  a  guaranty  mav  be  shown  as  an 
aid  to  the  construction  of  the  guaranty.^ 

Parol  evidence  of  the  oral  declarations  of  the  testator  as  to  his 
intent  are  inadmissible  either  as  to  the  persions  who  take  his  estate 
or  as  to  what  particular  part  of  the  estate  any  one  person  is  to  re- 
ceive. So,  where  a  will  devised  proi>erty  to  A.  B.  in  trust,  "  to  be 
disposed  of  by  him  as  I  have  heretofore  or  may  hereafter  direct 
him  to  do,"  parol  evidence  of  such  directions  tO'  the  trustee  is  inad- 
missible.^ Parol  evidence  of  direct  statementsi  of  intention  by  tlie 
testator  is  not  admissible  to  show  that  an  heir  omitted  was  inten- 
tionally omitted.^  Where  a  devise  was  to  John  11.,  the  eldest  son 
of  John  II.,  and  it  appeared  that  John  H.,  the  father,  had  an  eldest 
son  named  Simon,  and  a  son  by  a  second  marriage  named  John; 
h?jd,  that  the  declarations  of  the  testator  were  not  admisisible  to 
show  which  was  meant.^  Where  the  devise  was  to  the  testator's 
"  nephews,"  and  evidence  had  been  adduced  to  show  that  he  had  no 
nephews,  but  that  his  wife's  nephews  were  meant,  it  was  held  that 
evidence  that  these  could  not  have  been  intended  by  the  testator 
wai!  not  admissible,  without  also  showing  some  other  class  who 
were  intended  to  take.^°    Evidence  of  the  intent  of  the  sheriff  can- 

*Gi]mor's  Estate,   154  Penn.  State,  Texas,  174;  19  S.  W.  382;  31  Am.  St. 

523;  20  A,  614,  35  Am.  St.  Rep.  855.  Rep.  28. 

=^  Sharp    V.    Wightman,     205    Penn.  'In   re   Salmon's   Estate,    107    CaL 

285;  54  A,  888.  614,  40  P.  1030,  48  Am.  St.  Rep.   164. 

"  Callender   MeAuslan  &  Troup  Co.  °  Hiscocks   v.    Hiseocks,   supra. 

V.  Flint,  187  Mass.  104,  72  N.  E.  345.  ">  Sherratt    v.    Mountford,    L.  R.,  8 

'  Heidenheimer      v.      Bauman,      84  Ch.   928. 


48  Evidence.  [Chap.  2. 

n6t  be  used  to  aid  an  imperfect  description  in  a  sheriff's  deed  of 
real  estate.^^ 

Where  a  will  offered  is  claimed  to  be  a  forgery,  it  is  the  better 
rule  that  declarations  either  oral  or  written,  made  by  a  testator 
either  before  or  after  the  date  of  the  alleged  will,  as  to  his  testa- 
mentary intentions  are  not  admissible  to  show  that  it  was  very 
improbable  that  he  would  make  a  will  like  that  offered,  unless  the 
declarations  were  made  near  enough  to  the  time  of  its  execution  to 
hecome  a  part  of  the  res  gestae}^ 

A  devise  to  "  my  dear  wife  C."  cannot  be  defeated  by  showing 
that  the  devisor  had  a  lawful  wife,  M.,  alive  when  he  went  through 
a  form  of  marriage  with  C.^^  But  where  B.  makes  a  devise  to  his 
wife  A.,  the  devise  may  be  defeated  by  showing  that  A.  fraudu- 
lently concealed  from  B.  that  she  had  a  husband  living  when  she 
went  through  a  form  of  marriage  with  B."  Where  a  fine  was 
levied  of  twelve  messuages  in  Chelsea,  and  it  appeared  that  the 
cognizor  had  more  than  twelve  messuages  in  Chelsea,  oral  evi- 
dence was  admitted  to  show  which  messuages  in  particular  the  cog- 
nizor intended  to  pass.^^ 

But  whenever  the  intention  of  a  person  is  of  itself  a  distinct 
and  material  fact  it  may  be  proved  by  his  contemporaneous  oral 
or  written  declarations.  A  man's  state  of  mind  or  feeling  can  only 
"be  manifested  to  others  by  countenance,  attitude  or  gesture,  or  by 
sounds  or  words,  spoken  or  written.  After  his  death  there  can 
hardly  be  any  other  way  of  proving  it  than  by  his  declarations ; 
and  while  he  is  still  alive  his  own  memory  of  his  state  of  mind  at 
a  former  time  is  no  more  likely  to  be  clear  and  true  than  a  by- 
stander's recollection  of  what  he  then  said,  and  is  less  trustworthy 
than  letters  written  by  him  at  the  very  time  and  under  circum- 
stances precluding  a  suspicion  of  misrepresentation.  So,  on  the 
identity  of  a  dead  body  claimed  to  be  that  of  an  insured  party, 
declarations  of  the  insured  as  to  his  destination  when  last  heard 
from,  just  before  the  finding  of  the  body,  are  admissible.^^ 

The  declarations  of  a  party  at  or  about  the  time  he  signed  cer- 
tain orders  for  payment  of  deposits  are  admissible  to  show  his  in- 

"  Talley  v,  Schlatitz,  180  Mo.  231 ;  "  Wilkinson  v.   Jonghlin,   L.   R.,   2 

79  S    W    162.  Eq-  319,  following  Kennell  v.  Abbott, 

^=  Throckmorton  v.  Holt.  180  U.  S.  4  Ves.  802. 

552,    (and  list  of  cases  pro  and  con  "  Bulkeley  v.  Wilford.  Ry.  &  M.  88. 

cited  at  page  571),  21   S.   Ct.  474.  "Mutual  Life  Ins.   Co.  v.   Hillmon, 

"  Gains  v.  Rouse,  5,  B.  C.  422.  145  U.  S.  -285.  294.  12  S.  Ct.  9U9. 


Sec.  17.]  Parol  Evidence  as  to  Writings.  49 

tention  to  make  a  gift.     "  There  is  no  better  proof  of  intention 
than  declared  intention,  and  it  is  often  the  only  means  of  proof."" 

Sec.  17.  To  apply  Description  to  Real  Estate. 

It  may  be  laid  down  as  a  general  rule,  that  all  facts  relating  to 
the  subject  of  a  devise  or  deed,  such  as  that  it  was  not  in  the 
possession  of  the  testator,  the  mode  of  acquiring  it,  the  local  situa- 
tion and  the  distribution  of  the  property,  are  admissible 
to  aid  in  ascertaining  what  is  meant  by  the  words 
used.^  Even  the  value  of  the  property,  and  the  charges 
upon  it,  may  be  shown  in  explanation.^  In  construing 
a  will  or  deed  the  court  should  place  itself  as  fully  as  possible  in 
the  situation  of  the  writer,  and  guide  its  construction  of  his  in- 
tention in  some  degree  by  the  light  of  the  knowledge  thus  ac- 
quired.^ 

Wliere  a  testator  apparently  intends  to  devise  all  his  property 
and  he  has  three  pieces  of  land,  two  of  forty  acres  each,  and  he 
devises  forty  acres  to  a  son  but  describes  it  as  in  the  northeast 
quarter  of  a  certain  section,  which  he  never  owned,  the  word  north- 
east may  be  struck  out  and  parol  evidence  admitted  to  show  that 
the  testator  had  property  in  the  southeast  quarter  of  that  section 
and  the  court  will  then  construe  the  will  in  accordance  with  the 
testator's  intentions  to  devise  the  southeast  quarter.*  If  land 
described  in  a  deed  is  referred  to  merely  as  bounding  on  land  of 

"Sprague  v.  Walton,  145  Cal.  228,  Moore,  151  Mass.  87,  23  N.  E.  828, 
78  Pac.  645.  The  acts  and  declara-  21  Am.  St.  Rep.  430. 
tions  of  a  testator  or  an  owner  about  '  Parke,  J.,  Templeman  v.  Martin, 
the  time  of  the  execution  of  the  will  4  B.  &  Ad.  785 ;  Webber  v.  Stanley, 
or  gift  are  competent  not  for  the  pur-  16  C.  B.,  N.  S.  098;  Wigram  on  In- 
pose  of  showing  the  truth  of  the  mat-  terp.  Wills.  See  §  40,  post. 
ters  contained  in  the  declarations  ^  The  situation  of  the  parties  and 
but  as  throwing  light  upon  the  men-  surrounding  circumstances  at  the 
tal  condition  or  intention  of  the  time  of  the  execution  of  a  deed  may 
declarant,  so  where  an  administra-  be  shown  to  explain  the  meaning  of 
tor  brought  suit  for  the  conversion  the  words  "  claims  of  any  and  every 
of  a  note  claimed  by  the  defendant  description."  Gage  v.  Cameron,  212- 
to  be  given  to  him  by  the  intestate  111.  146,  72  N.  E.  204.  Nightingall 
evidence  of  remarks  made  by  the  in-  v.  Smith,  1  Exch.  879;  see  also  All- 
testate  about  the  time  of  the  alleged  good  v.  Blake,  L.  R.,  8  Ex.  160. 
gift  "that  he  could  put  Moore  (the  'Hill  v.  Crook,  L.  R.  6,  H.  L.  265, 
defendant)  through  for  it  and  shut  277;  Charter  v.  Charter,  L.  R.,  7  H. 
him  up"  and  that  the  defendant  was  L.  364,  per  Lords  Cairns,  C,  and 
a   rascal   are  admissible    with    other  Selboukne. 

evidence   to   show   the   intestate's   in-  ■*  Whitcomb    v.     Rodman,    156     111. 

tention  in  the  transaction.     Lane  v.  116,  40  N.  E.  553,  47  Am.  St.  Rep. 

' 181. 


50  Evidence.  [Chap.  2, 

the  grantor  parol  evidence  is  admissible  to  show  that  at  the  time  of 
the  conveyance  the  gantor  pointed  out  to  the  grantee  the  boundaries 
of  the  land  conveyed  and  they  subsequently  jointly  built  a  fence 
enclosing  it.^  Where  the  description  of  a  lot  of  land  conveyed  be- 
gins with  the  north  corner  of  a  certain  lot  and  it  appears  that 
this  lot  has  two  "  north  corners,"  evidence  is  admissible  that  if 
one  "  north  corner  "is  taken  as  the  starting  point  of  the  descrip- 
tion land  of  the  grantor  will  be  included,  while  if  the  other  "  north 
corner  "  is  taken  no  land  of  the  grantor  will  be  included,'^  So  in  a 
case  where  an  owner  of  a  large  tract  of  land  deeded  to  a  church 
a  lot  from  one  corner  three-fifths  of  an  acre  in  size  and  executed 
another  deed  of  the  whole  tract  to  another  party  reserving  "  one 
acre  out  of  the  northwest  corner  deeded  to  "  the  church,  the  owner 
does  not  retain  title  to  two-fifths  of  an  acre  outside  of  the  portion 
deeded  to  the  church.  A  description  of  an  acre  or  other  definite 
quantity  in  the  corner  of  a  particular  tract  may  ordinarily  be  held 
to  mean  such  quantity  lying  in  square  form  in  the  corner  named,, 
but  here  the  description  showed  that  the  only  land  excepted  was 
the  lot  actually  granted  to  the  church,  which  the  church  had  en- 
closed.^ Where  a  lot  of  land  is  described  as  on  Green  street,  about 
20  feet  front,  and  running  back  36  feet,  adjoining  Adams'  drug 
store,  parol  evidence  may  be  used  to  show  that  there  never  was  but 
one  Adams  drug  store  on  Green  street  and  no  other  lot  of  that  size 
adjoining  it.^  In  the  same  way  a  description  of  an  acre  of  land  in  a 
deed  situated  on  a  certain  road  "  on  which  a  schoolhouse  is  to  be 
built "  may  be  explained  by  evidence  that  certain  land  was  sur- 
veyed and  cleared  for  the  purpose  of  erecting  a  schoolhouse,  that 
the  schoolhouse  was  subsequently  erected  there  and  that  the  grantor 
owned  no  other  acre  in  that  vicinity  upon  which  a  schoolhouse  was- 
to  be  built.^  The  sale  of  '"  sundry  orchards  in  Ontario  and  Cuca- 
monga  "  may  be  explained  by  parol  proof  of  the  orchards  in- 
cluded.^'' 

Where  a  deed  of  trust  is  general  in  its  terms  and  does  not  de- 

^  Hooten    v.    Comerford,    152   Mass.  -'Pearson  v.   Adams,   129  Ala.    157, 

591,  26  N.  E.  407,  23  Am.   St.  Rep.  29  So.  977. 

861.  "Cottingham  v.  Hill,  119  Ala.  353, 

"Hereford    v.    Hereford,     134    Ala.  24  So.  552.  72  Am.  St.  Rep.  923. 

321,  32  So.  620.  '"Ontario,  etc.,  Association  v.   Cut- 

'Mavberrv    v.    Beck     (Kan.   1905),  ting,  etc.,  Co.,   134  Cal.  21,  66  P.  28„ 

81   Pae.   191.     To  the  same  effect  see  86  Am.  St.  Rep.  231. 
Lego  V.   Medley,   79  Wis.   211,   48  N. 
W.  375,  24  Am.  St.  Rep.  700. 


Sec.  17.]  Parol  Evidence  as  to  Writings.  51 

scribe  tlie  land  conveyed  by  courses  and  distances,  evidence  aliunde 
may  be  competent  to  explain  it.^^  But  in  a  snit  to  enforce  perform- 
ance of  a  contract  of  sale  of  ''  your  lot,"  parol  evidence  is  inad- 
missible to  identify  the  land  where  it  appears  that  the  seller 
has  three  lots  of  land  in  the  same  town.  This  decision  was 
reached  notwithstanding  a  statute  providing  for  the  introdiietion 
of  parol  testimony  to  identify  land  sued  for.^^  Parol  evidence  of 
acts  and  conversation  of  the  parties  prior  to  the  delivery  of  a 
deed,  to  show  that  it  was  not  intended  to  affect  certain  restrictions, 
is  inadmissible.^^  Where  a  conveyance  covered  certain  coal  under- 
lying premises  described  by  metes  and  bounds,  evidence  that  only 
a  certain  vein  of  coal  was  intended  was  held  to  be  properly  ex- 
cluded.^* A  deed  containing  a  particular  description  of  land  con- 
veyed cannot  be  varied  by  evidence  of  a  prior  agreement  as  to  the 
boundary  although  the  parties  occupied  in  accordance  with  this 
agreement.  ^^ 

With  respect  to  the  description  of  property  conveyed  the  rule 
of  construction  is  the  same  whether  the  deed  be  made  by  a  party 
in  his  own  right  or  by  an  officer  of  the  court.^^ 

Where  a  subject-matter  exists  which  satisfies  the  terms  of  the 
will,  and  to  which  they  are  perfectly  applicable,  there  is  no  latent 
ambiguity,  and  no  evidence  can  be  admitted  for  the  purpose  of  ap- 
plying the  terms  to  a  different  object.  Thus,  where  a  testator  de- 
vised his  "  estate  at  Ashton,"  it  was  held  that  oral  evidence  was 
inadmissible  to  show  that  he  was  accustomed  to  call  all  his  mater- 
nal estate  "'  his  Ashton  estate,"  there  being  an  estate  in  the  parish 
of  Ashton  which  was.  sufficient  to  satisfy  the  devise."  But  a  devise 
of  lands  "  in  parish  D."  will  pass  lands  of  which  jmH  only  is  in 
D.,  if  it  be  shown  by  oral  evidence  that  all  was  reputed  to  be  in 
it.^*  Where  words  have  acquired  a  precise  and  technical  meaning, 
no  other  meaning  can  be  applied  to  them.^^    In  the  case  of  a  legacy 

"Perry  v.  Elliott,  101  Va.  709,  44  "White   v.   Luning,   93   U.    S.   514, 

S.  E.  919.  23  L.  Ed.  938. 

^^  Farthing  v.   Rochelle,    131   N.   C.  ^'Chichester  v.  Oxendum,  3  Taunt. 

563,  43  S.  E.  1.  147;     S.    C.   Dom.    Pro.,   4   Dow,  65; 

'^  Vihlein    v.    Mathews,    172    N.    Y.  Webber  v.  Stanley,  supra ;     Pedley  v. 

154,  64  N.  E.  R.  792.  Dodds,  L.   R.,   2  Eq.   819.     See,   also, 

"King  V.     New    lork    &    C.    Gas  Carruthers  v.  Sheddon,  6  Taunt.  14. 

Co.,  204  Penn.  628,  54  A.  477.  "  Anstee  v.  Nehns,  1  H.  &  N.  225; 

'^Duggan    V.    Uppendahl,    197    111.  Whitfield  v.  Langdale,  1  Ch.  D.  61. 

179,  64  N.  E.  R.  289.  '^   Per  Lord  Kenyon,  Lane  v.  Earl 

of  Stanhope,  6  T.  R.  352. 


52  Evidence.  [Chap.  2. 

to  the  testator's  "  heir,"  it  cannot  be  shown  that  a  testator  was  in 
the  habit  of  calling  a  person  his  heir  who  was  not  so.^° 

Sec.  1 8.  Patent  Ambiguity  or  Indefiniteness. 

It  was.  formerly  said  that  where  the  ambiguity  is  not  latent,  or 
raised  by  extrinsic  evidence,  but  patent  or  apparent  on  the  face  of 
the  instrument,  oral  evidence  is  not  admissible  to  explain  such  am- 
bigTiity.  But  this  rule  is  really  only  a  statement  of  the  rule  that 
where  the  substantive  law  requires  a  matter  to  be  expressed  in 
writing  parol  evidence  will  not  be  admitted  to  fill  gaps  in  it.  But 
the  writing,  so  far  as  expressed,  can  always  be  viewed  tlirough  the 
eyes  of  the  parties  who  wrote  it,  in  view  of  their  situation,  w^hether 
the  ambiguity  is  apparent  upon  the  face  of  the  instrument  or  not.^ 
Thus,  where  a  blank  is  left  for  the  devisee's  name  in  a  will,  oral 

*"  Mounsey  v.  Blamire,  4  Russ.  384.  A.  B.,"  oral  evidence  of  what  passed 
Where  the  question  is  as  to  what  on  making  the  agreement  was  admit- 
the  writing  applies,  oral  evidence  is  ted  to  show  what  brick-works  were 
admissible  to  explain  it.  Thus,  where  intended  to  pass.  Paddock  v.  Fradley, 
a  testator  devised  "  all  his  farm  1  C.  &  J.  90.  Although  the  question 
called  Trogues  Farm,"  it  was  held  of  parcel  or  no  parcel  is  for  the  jury, 
that  it  might  be  shown  of  what  par-  the  judge  must  tell  the  jury  what  is 
eels  the  farm  consisted.  Radford  v.  the  proper  constuction  of  any  doeu- 
Southern,  1  M.  &  S.  299.  But  where  ments  necessary  to  be  considered  in 
a  deed  professes  to  convey  a  farm  as  the  decision  of  that  question.  Lyle 
described  on  a  schedule  and  map  an-  v.  Richards,  L.  R.,  1  H.  L.,  222.  Con- 
nexed,  a  field  not  included  in  the  ditions  of  sale,  shown  to  a  purchaser 
map  or  schedule,  though  always  at  the  time  of  sale,  are  evidence 
treated  as  part  of  tne  farm,  will  not  against  him  of  what  was  then  re- 
pass. Barton  v.  Dawes,  10  C.  B.  261.  puted  to  be  a  part  of  the  premises 
Where  the  testator  devised  two  cot-  conveyed  to  him  by  the  deed.  Murly 
tages,  one  described  as  being  in  the  v.  McDermott,  8  Ad.  &  E.  138.  But 
occupation  of  A.,  and  the  other  of  B. ;  they  will  not  narrow  the  language  of 
and  it  appeared  that  the  testator  had  the  conveyance.  Norton  v.  Webster, 
two  cottages  which  had  been  inter-  12  Ad.  &  E.  442.  See,  also,'Glave  v. 
nally  divided,  so  that  part  only  was  Harding,  27  L.  J.,  Ex.  286. 
occupied  by  A.,  and  part  of  the  other  ^  "  Bacon's  maxim  was  an  unprofit- 
occupied  by  B.;  it  was  held  that  only  able  subtlety.  In  truth,  the  only 
the  portions  of  the  cottages  so  occu-  patent  ambiguity  that  was  not  open 
pied  passed  by  the  devise,  and  oral  to  explanation  by  extrinsic  matter 
evidence  was  not  admissible  to  show  was  one  that,  in  the  nature  of  things, 
that  he  meant  the  entire  cottages  to  was  not  capable  of  explanation, 
pass.  Hubbard  v.  Hubbard,  15  Q.  B.  ...  Generally  speaking,  ambigui- 
227.  Where  a  lease  professed  to  de-  ties,  or  any  other  difficulties,  patent 
mise  premises  and  a  yard,  extrinsic  or  latent,  are  all  alike  as  regards  the 
evidence  was  admitted  to  rebut  the  right  and  duty  to  compare  the  docu- 
presumption  that  a  cellar  under  the  ments  with  extrinsic  facts,  and  as  re- 
yard  was  also  intended  to  pass.  Free-  gards  the  possibility  that  they  may 
land  V.  Burt,  1  T.  R.  701.  So  in  case  vanish  when  this  is  done."  Thayer's 
of  a  written  agreement  to  convey  "  all  Preliminary  Treatise  on  Evidence, 
those  brick-works  in  the  -possession  of  424,  425. 


Sec.  18.] 


Pahol  Evidence  as  to  Writings. 


53 


evidence  cannot  be  admitted  to  show  whose  name  was  intended  to 
be  inserted.^  Where  the  names  of  the  devisees  in  a  will  of  real 
property  were  all  indicated  only  by  single  letters,  a  card  kept  by 
the  testator  separate  from  his  will,  containing  "  a  key  "  to  the  let- 
ters, and  showing  the  person  meant  by  each,  was  held  inadmissible 
to  explain  it,  though  referred  to  in  the  will.^  But  where  a  blank 
was  left  for  the  Christian  name  only,  oral  evidence  was  admitted 
to  prove  the  individual  intended/  So,  if  a  legacy  gives  to  a  legatee 
a  sum  expressed  by  the  figure  5  following  the  dollar  sign  and  be- 
fore a  considerable  space  in  which  appear  somewhat  above  the  line 
two  ciphers,  a  patent  ambigl^ity  appears,  whether  the  testator  in- 
tended to  give  five  dollars  or  five  hundred.  But  this  is  not  the  kind 
of  patent  ambiguity  which  cannot  be  explained  by  parol,  and 
parol  evidence  of  the  situation  of  the  parties  and  of  the  purpose  of 
the  testator  in  inserting  the  legacy  is  admissible.^  A  contract  of 
fire  insurance  reading  "  for  the  term  of  three  years  from  the  four- 
teenth day  of  January,  1903,  at  noon,  to  the  fourteenth  day  of 
January,  1904,  at  noon,''  can  be  explained  by  parol  evidence  to 
show  what  the  contract  really  was.^ 


'Baylis  v.  Atty.-Gen.,  2  Atk.  239; 
Webster  v.  Atkinson,  4  N.  H.  21. 

'Clayton  v.  Nugent,  Ld.,  13  M.  & 
W.  200. 

*  Where    a    power    of    attorney    is 

made  to  Conrad  Krebs  and  

Krebs  parol  evidence  is  admissible  to 
show  the  Christian  name  omitted. 
La  Vie  v.  Tooze,  43  Ore.  590,  74  Pac. 
210;  Price  v.  Page,  4  Ves.  680.  But 
Bee  Doe  d.  Gord  v.  Needs,  2  M.  &  W. 
139. 

oSchlottman  v.  Hoffman,  73  Miss. 
188,  18  So.  893,  55  Am.  St.  Rep.  527. 

'Traders  Ins.  Co.  of  Chicago  v.  E. 
D.  Edwards  Post  No.  22,  G.  A.  R. 
(Miss.,  1905),  38  So.  779. 

So  in  case  of  a  devise  "  to  Mrs. 
G.,  the  Chancellor  referred  it  to  the 
Master  to  receive  evidence  to  show 
the  person  intended,  who  found  that 
the  testator  invariably  calleu  a  Mrs. 
Gregg  by  the  name  of  Mrs.  G."  Ab- 
bott V.  Massie,  3  Ves.  148.  Where  a 
will  mentioned  George,  the  son  of 
George  Gord,  and  also  George,  the 
son  of  John  Gord,  a  bequest  to 
"  George,  the  son  of  Gord"  was  ex- 
plained by  proof  of  the  declarations 
of  the  testator  to  mean  George,  the 


son  of  George  Gord.  Gord  v.  Needs, 
2  M.  &  W.  129.  In  reply  to  the  ar- 
gument that  this  was  a  patent  am- 
biguity, it  was  said  that  it  could 
only  appear  ambiguous  by  showing 
aliunde  the  non-existence  of  a  George, 
the  son  of  Gord,  different  from  the 
other  two  Georges ;  and  that  the  men- 
tion of  another  George  in  the  same 
will  had  no  other  effect  than  extrin- 
sic proof  of  the  same  fact  would  have 
had. 

If  an  agreement,  unambiguous  onj 
the  face  of  it,  is  shown  by  extrin- 
sic evidence  to  have  a  different  mean- 
ing from  that  which  it  imports,  and 
the  extrinsic  facts  are  undisputed, 
the  construction  of  it  is  for  the 
judge,  who  ought  not  to  leave  it  to 
the  jury  as  a  question  of  the  inten- 
tion of  the  parties.  Hitchin  v.  Groom, 
5  C.  B.  515. 

Where  a  blank  is  left  in  a  written 
agreement  which  need  not  have  been 
reduced  into  writing,  and  would  have 
been  equally,  binding  if  written  or  un- 
written (as  if  the  agreement  be  to 
deliver  goods  to  the  value  of  less 
than  10/.,  and  a  blank  be  left  ior  the 
quantity    of   goods   to   be   delivered). 


54  EviDE]srcE.  [Chap.  2. 

Many  cases  hold  that  it  is  not  admissible  to  explain  a  patent  am- 
bigiiitj/  or  an  ambiguity  which  appears  npon  the  face  of  the  in- 
strument, and  shows  that  something  is  omitted  which  must  be 
added  before  the  meaning  of  the  parties  can  be  ascertained.  Thus, 
where  a  memorandum  as  follows :  "  B.  takes  C.'s  Ohio  and  Miss. 
for  5,100  and  odd  dollars,  to  be  ind.  on  C.'s  note  on  date  of  sale," 
was  relied  on,  it  was  held  that  parol  evidence  was  not  admissible  to 
vary  it,  there  being  no  dispute  as  to  the  specific  note  or  stock 
meant,  or  the  meaning  of  the  abbreviations.*  So,  a  contract  in 
writing  as  follows:  "  I  hereby  agree  to  take  500  lbs.  of  sugar  of 
B.,  and  pay  him  therefor  ten  per  pound,"  contains  a  patent  am- 
biguity, and  parol  evidence  is  not  admissible  to  show  that  ten  cents 
was  the  price  agTced  on,  consequently  no  action  could  be  main- 
tained upon  the  contract.^ 

Where  the  words  of  an  instrument  are  so  indefinite  as  to 
convey  no  certain  meaning  the  court  will  not  admit  parol  evidence 
of  its  intent  and  thus  enable  an  act  to  be  done  by  parol  which  the 
law  requires  to  be  in  writing.  So,  the  words  in  a  deed  "  littoral  or 
aquatic  "  rights  are  too  indefinite  for  consideration  and  parol  evi- 
dence as  to  the  intention  of  the  parties  that  they  should  cover  cer- 
tain rights  in  oyster  beds  is  inadmissible.^"  A  description  in  a  deed, 
"  all  that  tract  or  parcel     .     .     .     containing  275  acres,  it  being 

in  such  a  case  it  would  seem  that  in  Blackf.  (Ind.)  89;  Bowyer  v.  Mar- 
an  action  for  the  non-performance  of  tin,  6  Rand.  (Va.)  525;  Morris  v. 
the  contract,  oral  evidence  may  be  ad-  Edwards,  1  Ohio,  184;  Johnson  v. 
mitted  to  supply  the  defect.  Phill.  Bullen,  2  Port.  (Ala.)  29;  Betts  v. 
Ev.  521.  An  instrument  so  imperfect  Demumbrune,  Cooke  (Tenn. ),  39; 
on  the  face  of  it  is  no  perfect  con-  MithoflF  v.  Bryne,  20  La.  An.  363. 
tract  at  all  so  as  to  exclude  oral  evi-  °  Colt  v.  Cone,  107  Mass.  285. 
dence.  As  to  the  effect  of  ommissions  *  In  Clements  v.  Taylor,  65  Ala. 
in  a  contract  within  the  Statvite  of  303,  a  certificate  signed  by  the  clerk 
Frauds,  see  post.  Action  for  not  ac-  of  the  U.  S.  district  court  officially, 
cepting  goods.  Where,  in  the  entry  with  the  seal  of  the  court  affixed, 
of  an  appointment  to  a  curacy  in  the  which  stated  "  that  the  foregoing 
bishop's  register,  a  blank  was  left  for  pages,  numbered  from  1  to  — ,  both 
a  patron's  name,  it  was  held  that  this  inclusive,  contain  a  full,  true  and 
might  -be  supplied  by  oral  evidence.  complete  transcript  of  all  the  pro- 
Meath,  Bp.  of,  v.  Belfield  Ld.,  1  Wils.  ceedings  in  the  matter  of  A.  B„  bank- 
215.  A  demise  offered  in  evidence  rupt,  as  the  same  appears  of  record, 
was  a  printed  blank  form  filled  up  and  on  file  in  my  office,"  not  describ- 
and  altered  for  use;  held,  that  the  ing  or  identifying  the  papers  included 
court  might  look  at  the  parts  struck  in  the  transcript,  was  held  fatally  de- 
out  in  order  to  ascertain  the  intent  fective,  since,  on  account  of  the  blank 
of  the  parties  in  what  remained.  the  court  could  not  tell  what  entries 
Strickland  v.  Maxwell,  2  Cr.  &  M.  and  papers  were  intended  to  be  cer- 
539.  tified. 

'  Panton  v,  Tefft,  22  111.  366 ;  Rich-  ">  Barateria  Canning  Co.  v.  Ott,  84 

mend  Trading,  «Scc.,  Co.  v.  Farquar,  8  Miss.  737,  37  So.  121. 


Sec  19.]  Parol  Evidence  AS  TO  Writings.  55 

part  of  the  lot  270,  and  part  of  lot  271,  and  part  of  lot  274  and 
part  of  lot  272,  all  in  the  17the  district  of  Harris  County,"  was 
lield  too  vague  and  indefinite  to  be  aided  by  parol  evidence  and  not 
-admissible  as  "  color  of  title.  "^^  Where  an  oral  contract  to  convey 
real  estate  covered  simply  "  100  acres  off  of  the  west  end  of  the 
land,"  it  is  too  indefinite  to  be  enforced  and  the  land  to  be  con- 
veyed cannot  be  identified  by  parol. ^^  A  phrase  in  a  lease  for  one 
year,  "  with  privilege  of  longer,''  is  too  vague  and  uncertain  to  con- 
stitute a  binding  covenant  and  cannot  be  explained  by  parol.^^ 
Parol  evidence  is  not  admissible  to  explain  the  words  in  a  mort- 
gage, "  seventy,  more  or  less,  of  corn  in  a  field,"  as  this  is  not  a 
defective  description,  but  no  description  at  all,  and  intrinsic 
evidence  is  not  admissible  to  insert  the  property  intended  to  be 
but  not  in  fact  covered  thereby." 

Sec.  ig.  Conduct  of  Parties  at  the  time  of  and  after  Execution  of 
Writing. 

The  general  rule  excludes  all  parol  evidence  in  reference  to 
written  contracts,  which  tends  to  alter,  vary  or  control  their  terms ; 
and  this  extends  even  to  the  exclusion  of  what  was  said  or  done  by 
the  parties  thereto  before,  at  the  time  of,  or  just  after,  the  making 
of  the  contract.  The  entire  agreement  of  the  parties — in  the  ab- 
sence of  fraud  or  mistake — is  regarded  as  being  merged  in  the 
writing  itself;  and  when  there  is  no  latent  ambiguity  therein,  the 
"writing  must  speak  for  itself,  and  be  construed  without  resort  to 
extrinsic  evidence.  But,  when  the  meaning  and  intent  of  the 
parties  to  the  instrument  cannot  be  reasonably  gathered  from  its 
language,  as  where  words  are  used,  the  ordinary  meaning  of  which, 
applied  to  the  contract,  would  be  senseless ;  or  where  the  instru- 
ment is  susceptible  of  two  constructions  essentially  different 
from  each  other,  as  well  as  in  numerous  other  instances,  parol  evi- 
dence of  what  was  said  or  done  by  the  parties  at  the  time  of  the 
making  of  the  contract;  or  a  condition  of  things  in  the  locality 
where  the  contract  was  made,  in  reference  to  which  the  contract 
Avas  made,  may  be  given  in  evidence  really  as  a  part  of  the  res 
gestae,  not  to  alter  or  vary  the  contract  itself,  but  to  explain  it,  and 

"Luttrell    V.   Whitehead,    121     Ga.  "  Howard    v.    Tomicich,    81     Miss. 

'699.  49  S.  E.  691.  703,  33  So.  493. 

"Knight  V.  Alexander,  42  Ore.  521,  "  Augustine  v.  McDowell,  120  Iowa, 

71  Pac.  057.  401,  94  N.  W.  918. 


56  Evidence.  [Chap.  2. 

ascertain  the  real  intention  and  purpose  of  the  parties  thereto. 
Thus,  in  an  action  on  an  alleged  contract  to  leave  property  by  will^ 
the  attitude  and  dealings  of  the  parties  during  the  whole  time  be- 
tween the  making  of  the  alleged  contract  and  the  death  of  the  de- 
cedent are  material  as  part  of  the  res  gestae}  So,  Avhere  the 
meaning  and  application  of  a  written  contract  cannot  be  ascer- 
tained from  the  instrument  itself,  parol  evidence  may  be  given  to 
explain  its  true  intent  and  meaning;"  and  this,  whether  the  am- 
bigiiity  arises  from  the  contract  itself,  or  the  mode  of  executing 
it^  and  facts  existing  at  the  time  of  making  the  contract,  to  Avhich 
the  w^ords  employed  in  it  relate,  may  be  proved  as  a  solution  of  the 
real  intent,  purpose  and  meaning  of  the  parties  ;^  as  that  a  contract 
for  the  payment  of  money  was  made  with  reference  to  Confederate 
money.^  The  circumstances  attending  the  transaction,  and  w^hat 
was  said  and  done  by  the  parties  while  engaged  in  the  act  of  execu- 
tion, may  be  resorted  to,  not  to  vary,  but  to  explain  and  apply  the 
contract,^  and  show  the  real  intention  of  the  parties  f  but  a  party 
cannot,  even  when  there  is  an  ambiguity,  be  allowed,  in  the  ab- 
sence of  fraud,  to  sw^ear  to  what  his  understanding  of  the  matter 
was,  unless  the  other  party  understood  the  matter  the  same  way,^ 
A  grantor  in  a  deed  may  show  as  part  of  the  res  gestae  his  objec- 
tions to  signing  a  certain  deed  in  a  certain  way  in  order  to  rebut 
the  presumption  as  to  title  arising  from  such  signature.^ 

1  Burns  v.  Smith,  21  Mont.  251,  53  H.    67:      Knights   v.    N.    E.    Worsted 

P.  742,  69  Am.  St.  Rep.  653.  Co.,  2  Ciish.   (Mass.)   271;   Spencer  v. 

=  De  Wolf  V.  Crandall,  1  Sweeney  Babcock.  22  Barb.  (N.  Y. )  326;  Con- 
(N.  Y.),  556;  Suffern  v.  Butler,  21  ner  v.  Carpenter,  28  Vt.  237;  Emery 
N.  J.  410;  Sweet  v.  Sliumway,  102  v.  Webster,  42  Me.  204;  Ratcliff  v. 
Mass.  365;  Iron  City  Commercial  Allison.  3  Rand.  (Va.)  537;  Car- 
College  V.  Kerr,  3  BreAvst.  (Penn.)  niony  v.  Hooper,  5  Penn.  St.  305; 
196;  Howlettv.  Hewlett,  56  Barb.  (N.  Black  v.  Columbian  Ins.  Co.,  42  N. 
Y. )  467 ;  Arthur  v.  Roberts,  60  id.  Y.  393 ;  McGuire  v.  Stevens,  42  Miss. 
580;  Robinson  v.  United  States,  13  724:  Acker  v.  Bender,  33  Ala.  230; 
Wall.  (U.  S.)  303;  Harris  v.  Rath-  Sigerson  v.  Cushing,  14  Wis.  527; 
bun.  2  Abb.  App.   (N.  Y.)  426.  Cross  v.   Pearson,    17   Ind.   612;   Hal- 

^Haile     v.     Pierce,     32     Md.     327;  stead  v.  Meeker,  15  N.  J.  136;   Haide- 

Richmond    R.    R.    Co.    v.    Snead,    19  man  v.  Chambers,  19  Texas,  1. 
Gratt.    (Va.)    354.  '  Venzan  v.  McGregor,  23  Cal.  339; 

*  Richards  v.  Schlagelmick,  65  N.  Ohio,  &c.,  R.  R.  Co.  v.  Middleton,  20 
C.  150;   Donley  V.  Tindall,  32  Tex.  43.  111.     029;     Hiimmann    v.    Rosenback, 

^  Thornington    v.     Smith,    8    Wall.  39  N.  Y.  98 ;  Farmers'  Bank  v.  Win- 

(U.  S.)    12;   Donley  v.  Tindall,  ante.  field,   24    Wend.    (N.    Y. )    419;   Low- 

*  Foster  v.  McGraw,  64  Penn.  St.  rey  v.  Adams,  22  Vt.  160;  Donnell 
464;    Field  v.  Munson,  47  N.  Y.  221;  v.'Simonton,   13  Minn.   301. 

Ins.    Co.    V.    Thorp,    22    Mich.    146;  « Dalano  v.  Gorham,  48  N.  H.  203. 

Goodrich  v.  Stevens,  5  Lans.   (N.  Y.)  »  State  v.   Andrews.  39   W.  Va.   35, 

230;      Bambridge  v.   Wade,   20  L.  J.  19  S.  E.  385,  45  Am.  St.  Rep.  884. 
(Q.   B.)    7;   Grant  v.  Lathrop,  23  N. 


Sec.  19.]  Pakol  Evidence  as  to  Whitings.  57 

So,  where  a  contract  is  silent  as  to  the  time  or  mode  of  payment 
parol  evidence  may  be  given  to  establish  the  understanding  or 
ag  «,4nt  of  the  parties  in  that  respect ;  and  the  same  is  tn.e  .vhen 
anv  e  intial  fea  nre  or  part  of  the  contract  has  obviously  been 
mit  ed7«  as  „here  a  person  has  sold  the  good  will  o    a  biisiness 
r  vhat  plac;  his  business  was  located;"  or  to  show  the  actual  or 
an      d  t  onal  consideration  of  a  contract  or  deed   when  the  terms 
of  the  bargain  are  not  sp«ifically  stated,'   or  to  identify  prope    y 
described  in  it,  whether  real  or  personal;"  or  to  show  tha    a  sale 
m'ntoled   in 'a  written  agreement  was  ma  e  by  -mpk    and 
whether  or  not  the  articles  tendered  correspond  iherewith      or  the 
^  for  which  a  note  was  given,  when  not  --- "!  \f^ 
terms  •«  or  for  whose  benefit  a  contract  was  made ;    or  that  it  was 
l^eci  ted  upon  condition  that  some  other  person  should  sign  it; 
or  when  fraud  is  claimed,  or  any  breach  of  warranty  in  an  action 
upTn  an  insurance  policy,  upon  the  ground  that  the  bmld.ng  was 
Xd  for  purposes  more  hazardous  than  those  m  the  class  m  wh  eh 
U  was  rated,  proof  is  admissible  to  show  that  the  insure.,  knew  the 
trTic  nre  ai^d  the  uses  to  which  it  was  devoted;-  or  when  only  a  . 
pa  t  of  he^greementhas  been  reduced  to  writing  and  it  rests  partly 
[n  parol  •"  ^  any  distinct  valid  parol  contract  between  the  parties 
made  at' the  same  time  and  not  reduced  to  writing,  which  is  not 
Tncollt  with  the  terms  of  the  written  contract,   and  which 
ope  ated  as  an  inducement  to  either  of  the  parties  to  enter  into  the 
orLin  1  aA-eement;»  but  this  must  not  be  understood  as  authoriz- 
ing hm'oof  of  an;  parol  agreement  so  made,  to  in  any  wise  vary 
Xge  or  control  the  terms  or  provisions  of  the  witten  contract. 

..p,,,    V.    Owings,    .2    Md     402,  ^%^!'^:^!^  Z  ^.^■ 

Donley  v.  Tind.-Ul.  32  Tex    43  l»t._  «  J^^^^^  ^.    j,^,-^„,    3  g   c.  330, 

..Waifleld  V.  Booth,  33  M    M.  ^    ^            3-  j^jj^^    457 

"Pierce    v.     Brc«-,     43     Vt.     iJi,  ,.  ji„™.  Ac.,  of  N.  Y.,  v.  Exchange 

Nedvidek     V.    Meyer     40    Mo^    600,  Co.,  3  Abb.  .4pp.    (N.  Y.)  261 

Landerman  v.  Inpnl!"™.  tS,',"*,,;;;!;  ■•Webster  v,    Hodgkins,    25    N,  H. 

Perry  v.  Smith,  34  Tex.  2.1,  Booth  ^^^      ^_^^^^^    ^     Bradley,    42    N.    Y. 

V.  Hinea,  54  111,  303  •     \yj„^  ^    Chamberlain,  32  Vt. 

••Button   V     -irnctt     51    in.'-"-  ^rane  v.    Elizaebth,  &c.,  Asso., 

Bancroft  v.  Gvover,  23  Uis.  *«'■  on  N   J    302. 

"Pike    V.    Fay,    Wl.,M^f-     "tl  =..  Bonney   v.  Merrill.  57  Me.  368 

Stoops   V.   Smith,    100  .d    63;  Sweet  .  ^™"J„,  ,..  Thompson,  19  Mr^^h. 

V.  Shumway,  102  id.  365.         ^     „,  ,  00,  proctor.v,  Gilson,  49  N,  H,  62; 

.'Collins \-.   Gilson    29   lojva,   61,  |- ^'O"    „,„l,,,l,  44  vt.  44;    Bas- 

Kimball    V.    Myers,  ;21/Il'=l>-    ^J"'  f^"„'/';.  porbes.  36  Md,  155;  Weaver 

,      Hutching  V.  Hubbard,  34  NY.  _4^  sn      ^^^^^^      ^.    ^^^     .,,,.  g^^j^    ^_ 

'•Lancey  v.   Phenix,  4c.,  Ins.  LO.,  ^_^^^        35  i„j    255. 


Evidence. 


[Chap.  2. 


"Where  the  defendant  signed  with  the  plaintiff  a  definite  contract 
for  driving  logs,  a  suggestion  made  at  the  time  by  the  plaintiff  to 
the  defendant  that  he  conceal  some  of  the  logs  from  the  sealer  is 
not  part  of  the  res  gestae  on  the  issue  of  fraud  in  the  inception  of 
the  comtract.^" 


"McLeod  V.  Johnson,  96  Maine, 
■271,  52  A.  760.  The  application, 
force  and  extent  of  this  exception 
to  the  rule  is  well  illustrated  by  a 
case  decided  in  the  Supreme  Court 
of  Pennsylania  (Shugart  v.  Moore,  1 
Weekly  Notes  of  Cases,  598,  599) 
under ^ the  following  state  of  facts: 
The  plaintiff  went  into  possession  of 
defendant's  farm  under  a  written 
lease,  by  the  terms  of  which  he  was 
to  cultivate  the  farm  upon  shares. 
There  was  no  barn  upon  the  premises 
suitable  to  store  the  crops  in,  and 
there  was  no  provision  in  the  lease 
in  reference  to  the  building  of  a  new 
-one;  but  the  plaintiff'  offered  to  prove 
upon  the  trial,  that  before  the  first 
of  April,  1869,  the  defendant  pro- 
posed that  if  he  (the  plaintiff) 
would  lease  and  move  on  to  his  (the 
defendant's)  farm  for  a  year,  as  a 
■cropper,  he  (the  defendant)  would 
build  a  barn  thereon  by  harvest 
time;  that  when  the  defendant 
brought  the  agreement  to  him  to  sign 
he  at  first  refused  to  sign  it,  be- 
cause it  did  not  mention  that  the 
defendant  was  to  build  the  b'arn; 
that  the  defendant  then  said  that 
that  was  not  necessary,  as  he  Avas  a 
man  of  his  word  and  would  do  as  he 
had  agreed,  whereupon  the  plaintiff 
signed  the  agreement  and  entered 
into  the  possession  of  the  farm;  but 
the  defendant  neglected  and  refused 
to  build  the  barn.  Upon  the  trial  of 
the  case  in  the  lower  court  the  judge 
refused  to  admit  the  evidence  of  the 
foregoing  facts,  but  the  Supreme 
Court  held  that  the  evidence  was  ad- 
missible. SiiARSwooD,  J.,  said:  "The 
«ases  of  Weaver  v.  Wood,  9  Penn.  St. 
220,  and  Powelton  Coal  Co.  v.  Mc- 
Shain,  74  Penn.  St.  238,  are  full  to  the 
point  that  the  evidence  should  have 
been  admitted.  These  cases  settle, 
beyond  all  question,  that  when  a 
promise  is  made  by  one  party,  in 
consideration   of   the   execution  of   a 


written  instrument  by  the  other,  it 
may  be  shown  by  parol  evidence." 
The  same  doctrine  was  applied  in 
the  case  of  Lindley  v.  Lacej',  17  C.  B. 
(N.  S. )  578.  In  that  case  it  was 
held  that  where,  in  negotiating  the 
sale  of  the  good  will  and  fixtures  of 
a  business,  the  purchaser  promised 
that,  in  consideration  of  the  vendor's 
signing  the  agreement,  he  would 
settle  a  suit  of  a  third  party  pending 
against  the  vendor,  that  parol  evi- 
dence of  such  agreement  was  admis- 
sible, even  though  the  turitten  agree- 
ment authorized  the  purchaser  to 
settle  the  suit  out  of  the  purchase- 
money.  In  Baker  v.  Mich.  Cent.  R. 
R.  Co.,  42  111.  73,  the  plaintiff 
shipped  eighty  tierces  of  hams  over 
the  defendants'  road,  in  reference  to 
the  shipment  and  transportation  of 
which  he  made  an  oral  agreement 
with  the  defendants,  through  their 
agent,  that  the  freight  should  not  be 
subject  to  the  restrictions  upon  the 
carriers'  liability  applied  to  less  per- 
ishable goods.  The  bill  of  lading 
contained  this  restriction,  but  the 
court  held  that  the  agreement  be- 
tween the  parties  might  be  shown  by 
parol  evidence  in  rebuttal  of  the  bill 
of  lading  in  that  respect.  In  Silli- 
man  v.  Tuttle,  45  Barb.  (N.  Y.)  171, 
the  plaintiff's  bought  of  the  defend- 
ants a  canal  boat.  The  price  was 
agreed  upon,  and  a  bill  of  sale  exe- 
cuted and  delivered.  The  boat  was 
then  on  a  trip  transporting  merchan- 
dise, and  it  was  agreed,  by  parol  evi- 
dence, between  the  parties,  at  the 
time  of  the  sale,  that  the  plaintiffs 
should  have  the  avails  of  the  trip, 
upon  payment  of  the  expenses  there- 
of. The'  bill  of  sale  was  silent  upon 
this  matter,  and  the  title  and  right 
of  possession  passed  on  delivery  of 
the  bill.  It  was  held  by  the  court 
that  this  was  an  independent  con- 
tract, relating  to  the  earnings  of  the 
boat,  and  not  to  the  boat  itself,  and 
having  no   necessarv  connection  with 


Sec.  20.] 


Parol  Evidence  as  to  Writings. 


59 


Sec.    20.  To   explain    or   vary    Legal    Effect    of    unambiguous 
Writing. 

Parol  evidence  is  never  admissible  to  explain  a  written  contract 
or  show  the  intention  of  the  parties  when  the  contract  is  free  from 


its  sale,  and  that  parol  evidence  was 
admissible  to  establish  it,  and  that 
its  establishment  did  not,  in  any 
wise,  interfere  with,  alter,  vary  or 
•control  tlie  bill  of  sale. 

So  evidence  is  admissible  when  it 
only  tends  to  establish  a  contract 
supplemental  to  the  written  contract. 
Thus,  in  Malpas  v.  London,  &c.,  R. 
R.  Co.,  L.  R.,  1  C.  P.  336,  the  plain- 
tiff made  arrangements  orally  with 
the  defendants  to  convey  cattle  for 
him  to  E.  on  their  railway,  and 
thence  to  K.  on  a  connecting  line, 
and  at  the  same  time,  without  no- 
ticing its  contents,  signed  a  consign- 
ment note  by  which  the  cattle  were 
directed  to  be  shipped  to  E.  It  was 
held  that  evidence  was  admissible  to 
prove  the  parol  agreement  to  trans- 
port the  cattle  from  E.  to  K.,  as 
such  agreement  did  not  conflict  with 
the  consignment  note,  but  was 
merely  supplemental  tliereto.  That 
collateral  parol  agreements  relating 
to  the  subject-matter  of  the  contract, 
but  entirely  independent  of  the  eon- 
tract  itself,  and  not  intended  to 
qualify  or  control  it,  may  be  given  in 
evidence,  and  may  be  made  the  ground 
of  an  action,  or,  in  a  proper  case,  set 
up  as  a  defense  to  the  instrument  it- 
self, is  established  by  numerous  au- 
thorities. Buzzell  V.  Willard,  44 
Vt.  44 ;  Morrill  v.  Waterson,  7  Kan. 
199;  Wesbrook  v.  Jeffers,  33  Tex.  86. 
But  the  contract  must  be  an  inde- 
pendent one,  and  such  as  could  prop- 
erly be  made  by  parol,  and  as  is  not 
repugnant  to  the  provisions  of  the 
written  agreement;  that  is  to  say,  it 
must  not  be  such  a  contract  as  in 
any  wise  qualifies,  limits  or  controls 
the  written  instrument  itself,  or  its 
effect,  application  or  construction. 
Thus  it  has  been  held  incompetent  to 
introduce  evidence  of  a  parol  agree- 
ment, that  the  deed  of  a  certain  piece 
of  land  should  pass  the  manure  then 
on  the  premises,  because  such  an 
agreement  would  qualify  or  extend 
the  provisions  of  the  instrument,  and 


add  to  its  effect,  and  control  its  legal 
construction;  because  the  question  as 
to  whether  the  manure  passed  by  the 
deed  is  purely  one  of  law,  depending 
upon  a  variety  of  questions.  Proc- 
tor v.  Gibson,  49  N.  H.  62. 

On  a  question  whether  a  deputy 
sheriff  acted  negligently  or  unfaith- 
fully in  not  making  an  arrest  of  one 
S.,  evidence  was  received  that  he  in- 
quired at  S.'s  place  of  residence, 
called  at  his  shop,  inquired  of  a  man 
and  boy,  who  told  him  S.  was  at  his 
house,  where  he  went  and  inquired 
for  him  of  a  woman  whom  he  learned 
was  S.'s  wife,  mentioning  to  her  his 
business.  She  told  him  that  her  hus- 
band was  then  at  work  at  the  shop. 
The  evidence  of  these  answers  was 
objected  to  as  hearsay,  and  excluded; 
but  a  new  trial  was  granted.  The 
court  said  it  was  a  material  point 
whether  the  officer  made  due  search 
and  inquiry.  It  was  his  duty  to  in- 
quire at  all  proper  places,  and  search 
wherever  it  was  probable  S.  would 
be  found.  To  show  this,  it  was  neces- 
sary he  should  state  the  inquiries 
and  the  answers  made,  and  that  he 
had  made  search  accordingly.  Such 
answers  are  part  of  the  transaction. 
They  are  facts,  and  do  not  stand  on 
the  footing  of  hearsay  evidence. 
Phelps  v.  Foot,  1  Conn.  387;  Pon- 
sonby  v.  Debaillon  et  al.,  6  Mart. 
(La.)  Rep.  238.  The  defendant,  as 
deputy  sheriff,  seized  a  lot  of  wool 
and  other  property,  under  an  execu- 
tion against  S.,  as  his  property.  The 
plaintiff  had  delivered  wool  to  S.  to 
be  manufactured;  and  before  the 
seizure,  on  inquiring  of  S.  at  his  fac- 
tory as  to  his  progress,  S.  showed 
the  plaintiff  the  wool,  yarn  and  hock- 
ing, which  he  said  were  the  plain- 
tiff's, who  then  examined  them.  S. 
afterwards  absconded,  and  the  goods 
were  seized.  ,  These  declarations  of 
S.  were  offered  in  evidence,  and  held 
admissible,  the  court  saying:  "As  a 
mere  declaration,  this  is  not  evi- 
dence; for   tiiough    S.   is   out  of  the 


60 


Evidence. 


[Chap.  2. 


doubt,  and  such  evidence  gives  to  the  contract  an  effect  different 
from  that  which  arises  from  a  fair  construction  of  the  language 
used,  or  gives  an  advantage  to  one  party,  or  adds  a  burden  to  the 
other,  which,  except  for  such  evidence,  would  not  exist.     The 


country,  his  sayings  should  be  re- 
jected as  hearsay.  It  is  a  difficult 
case  of  the  res  gestae:  The  property 
was  in  possession  of  S.,  and  difficult 
to  be  distinguished  from  other  prop- 
erty of  the  same  kind  also  in  his  pos- 
session. If  the  saying  had  been  with- 
out the  parties  being  engaged  in  any 
act,  it  would  have  been  mere  hearsay. 
But  here  loas  an  act.  It  was  like 
labeling  the  goods  with  the  owner's 
name.  Showing  the  property  to  the 
plaintiff  as  his  wool,  on  his  going 
and  inquiring,  in  different  stages  of 
process,  was  an  act  or  transaction, 
and  is  like  an  actual  separation 
from  the  common  mass.  Pool  v. 
Bridges,  4  Pick.    (Mass.)    378. 

Although,  on  the  trial  of  an  indict- 
ment for  manslaughter,  malice  can- 
not be  shown  on  the  part  of  the 
prosecution,  yet  declarations  made 
by  the  prisoner,  at  the  commence- 
ment of,  and  during  the  fatal  affray, 
as  well  as  immediately  before  and 
after  it,  must  be  received  as  consti- 
tuting a  part  of  the  res  gestae;  and 
this  although  they  may  incidentally 
tend  to  show  malice.  State  v.  Powell, 
7  N.  J.  L.  244.  In  this  case,  the 
parties  being  shown  together  quarrel- 
ing immediately  before  the  fatal 
blow,  a  witness  was  allowed  to  state 
that,  in  the  course  of  tlie  quarrel,  the 
prisoner  threatened  that  he  would 
kill  the  deceased  before  he  went  to 
sleep.  Indeed,  malice  may  be  quite 
material ;  for  should  plain  murder 
be  made  out,  the  court  might,  in 
its  discretion,  discharge  the  jury, 
and  order  a  higher  indictment  to  be 
preferred.  In  an  action  for  a  libel, 
what  a  third  person  told  the  defend- 
ant as  to  its  truth  before  the  de- 
fendant published  the  libel,  was  of- 
fered in  proof  to  mitigate  damages, 
and  was  held  receivable.  Coleman 
V.  Southwick,  9  John.  (N.  Y.  |  45; 
Kennedy  v.  Gregory,  1  Binn.  (Penn.) 
85 ;  Morrison  v.  Duane,  1  id.  90. 

In  a  settlement  cause,  on  a  question 
whether  C,  the  grandfather,  liad 
made  a  gift  of  a  slave  to  his  grand- 


daughter,  it   was   proved  by   the   de- 
fendants that  he  requested  her  to  be 
brought  up  so  as  to  be  useful  to  his 
granddaughter      when      married,      to 
whom    he   intended   to   give   her,   and 
that     F.,    who    married    the    grand- 
daughter,  came   and   took   the   slave, 
saying  that  she  had  been  given  to  his 
wife   by   her   grandfather.     And   this 
evidence  was  held  admissible  as  part 
of  the  res  gestae.   The  court  said  the 
change  of  possession  was  established. 
The  declarations  of  the  parties  went 
to   show   the    intent   with   which   the 
change  was  made.       On  scire  facias, 
to   enforce   a    recognizance  against   a 
house  on   which,   with  other   real  es- 
tate, it  had  been  charged  by  K.,  the 
cognizor,  the  defendant,  claiming  un- 
der K.,  sought  to   raise  an  inference 
of    paj'ment    from    the    fact    of    the 
cestui  que  trust  of  the  plaintiff'  hav- 
ing    released      some     of      the      land 
charged,   and   especially  a  tract  sold 
by  K.  to  Fisher.       In  reply  to  this, 
the  plaintiff  offered  K.'s  letter  in  ev- 
idence,   requesting    such    release,    on 
the    ground    that    there    was     other 
property    out    of    which    satisfaction 
could  be  obtained.    This  was  objected 
to  as  7-es  inter  alios  acta,  but  it  was 
held  admissible,  as  completely  repell- 
ing the  inference  of  payment,  so  far 
as  it  was  derivable  from  the  circum- 
stances  of   the    release.        Reigart   v. 
Ellmaker,   10  S.  &  R.  27.     In  an  ac- 
tion against  a  surety  on  a  bond  for 
money,  he  insisted   that  he   was   dis- 
charged    by     the     plaintiff's     laches. 
The  plaintiff,  to  show  that  the  surety 
was  indemnified,  offered  to  prove  that 
his  principal  had  delivered  a  note  ta 
a  witness,  telling  him  it  icas  for  his 
surety,  and  that  it  was  to  secure  him; 
and   that   the   note   was   delivered    to 
the    suret}',    who    collected   it.        The 
declarations    of    the    principal    were 
Tiolden  admissible  in  evidence  as  part 
of  the  res  gestae.     Deardorf  v.  Hilde- 
brand,  2  Rawle  (Penn.)   220.       Upon 
a  trial  for  larceny,  it  appeared  that 
the    prosecutor,   on    his    return    from 
search,    declared   himself   satisfied   of 


Sec.  20.] 


Parol  Evidence  as  to  Writings. 


61 


mere  assertion  by  a  party  to  a  written  contract  that  uncertainties 
and  ambiguous  statements  exist  in  it  will  not  afford  a  basis  for  the 
introduction  of  parol  evidence  when  on  a  perusal  of  the  writing 
the  court  cannot  find  any  equivocal  language  employed.^  Parol 
evidence  is  not  -admissible  to  explain  the  words  of  a  contract  made 
in  ordinary  popular  language,  and  so  it  is.  not  admissible  to  show 
that  tlie  words  in  a  deed  to  a  railroad  "  legitimate  railroad  pur- 
poses "  were  not  intended  to  include  a  hotel  or  eating  house.^ 


the  prisoner's  innocence,  having 
found  his  watch  in  his  waistcoat 
pocket;  and  directed  the  driver  lo 
turn  about.  The  prosecutor  being 
absent,  his  declarations  were  re- 
ceived for  the  prisoner  as  a  part  of 
the  res  gestae.  Kelly's  case.  3  C.  H. 
Rec.  15.3.  In  an  action  for  breach  of 
a  marriage  promise,  the  defendant 
may  show  by  a  third  person,  in  order 
to  mitigate  damages,  that  his  father 
declared  to  him  his  dislike  of  the 
match,  on  account  of  the  plaintiff's 
bad  character.  It  appeared  that  the 
father  was  an  incompetent  witness, 
having  employed  the  defendant's  at- 
torney. Irving  V.  Greenwood,  1  C.  & 
P.  350.  In  a  writ  of  entry  against  a 
grantee  of  S.,  which  grantee  had  no- 
tice of  a  prior  deed  from  S.,  under 
which  the  defendant  claimed,  it  was 
alleged  that  S.  had  fraudulently  ob- 
tained and  suppressed  the  first  deed; 
and  to  show  this,  it  was  in  proof  that 
he  obtained  access  to  the  desk  of  the 
first  grantee  under  pretense  of 
searching  for  other  papers.  It  was 
held  that  his  declarations,  while  at 
the  desk,  going  to  identify  the  deed 
as  one  of  the  papers  which  he  took 
away,  and  to  show  its  contents,  were 
admissible  in  evidence  as  part  of  the 
res  gestae  against  the  tenant.  Davis 
V.    Spooner,    3    Pick.     (Mass.)     284. 

There  are  certain  facts  which  can 
only  be  proved  by  the  acts  or  decla- 
rations of  a  party,  as  that  he  could 
write,  or  read,  or  knew  the  multipli- 
cation table,  etc.  Darby  v.  Rice,  2 
N.  &  McCord   (S.  C),  590. 

^Atchison,  T.  &  S.  F.  E.  Co.  v. 
Truskett,  67  Kan.  26,  72  Pac.  562. 

=  Abraham  v.  Oregon,  etc..  Railroad 
Co.,  37  Ore.  495,  60  P.  899,  82  Am. 
St.  Rep.  779. 

Thus,     where     an     agreement     in 


writing    was    entered    into    between 
A.  and   B.,  that  A.   should   have  the 
product    of     "  Borenam    meadow,"    it 
was  held  that  A.  could  not  prove  that 
it  was  at  the  same  time   agreed   orally 
that  he  should  also  have  the  produce 
from     both     Milcroft     and     Boreham 
meadow.     Alines  v.    Ansell,    3    Will. 
275;   Angel  v.  Duke,  32  L.  T.,  N.  S. 
320;   Hope   v.    Atkins,    1    Price,    143. 
So,   where   a   note   is   payable  on   de- 
mand, parol   testimony  is  not  admis- 
sible to  show  that  it  was  agreed  that 
it  should  not  be  payable  until  a  given 
event    happened     (Moseley    v.    Huna- 
ford,  10  B.  &  C.  729;  Besant  v.  Cross, 
10  C.   B.   895;   Adams  v.   Woodley,   1 
M.    &    W.    374),   or    to   show   that   a 
note,   payable  on  a  day  certain,   was 
to    be    paid    on    a  ^contingency    only 
(Ramsean  v.   Walker,   1    Stark.   361; 
Foster  v.  Jolley,  1  C,  M.  &  R.  703; 
S.   B.   Morrison  v.   Lovejoy,   6   Minn. 
319;     Hatch    v.    Hyde,  "  14    Vt.    25; 
Swank  v.  Nichols,  24  Ind.  199;  Farn- 
ham  V.   Ingham,  5  Vt.   514;      Schur- 
mier     v.     Johnson,     10     Minn.     319; 
Smith  V.  Thomas,  29  Mo.  307;      Fay 
V.  Blackstone,  31  111.    538;    Carrier   v. 
Hale,    8    Allen   [Mass.],  47.       Or    to 
extend  or  vary  the  time  of  payment, 
Inge  V.  Hana,  29  Mo.  399;   Brown  v. 
Wiley,   20   How.    [U.   S.]    442;   Eaton 
V.    Emerson,    14   Me.    335;   Joyner    v. 
Turner,     19     Ark.     690;      Cowles    v. 
Townsend,    31    Ala.    133.       And    the 
same    rule    applies    to    bills    of    ex- 
change.      Mason   v.   Graff,   35    Penn. 
St.  445.     Or  that  one  set  of  written 
instructions        superseded        another, 
Dunlap    V.    Monroe,     7    Cr.     (U.    S.) 
242;   or   that  the   party  should   have 
what  the  written  instrument  said  he 
should    not    have,    Jones  v.   Parmer, 
11  Paige   (N.  Y.)   Ch.  650;   Osborn  v. 
Hendrickson,    7    C.il.    282,    or    to    iu- 


62 


Evidence. 


[Chap.  2. 


So  oral  evidence  is  inadmissible  to  alter  the  legal  effect  and 
construction  of  a  ^vritten  agreement.  Thus,  parol  evidence  of  a. 
verbal  agreement  between  a  husband  and  wife  giving  her  equal 
rights  in  land  conveyed  to  both  of  them,  is  inadmissible  as  changing 
the  legal  effect  of  the  deed,  which  was  to  create  a  tenancy  by  en- 
tirety.^ Where  a  deed  is  made  to  A.  and  B.,  as  tenants  in  common, 
it  cannot  be  shown  by  parol  that  the  conveyance  was  in  reality  to  a 
partnership  consisting  of  A.  and  B,*  and  a  grantor  cannot  show  by 
parol  evidence  that  an  embankment,  rails,  and  ties  Avere  fixtures 
and  so  not  included  in  a  deed  of  land  on  which  such  property  was, 
if  the  property  would  be  considered  real  estate,  in  the  absence  of 
agreement.^     The  words  '^  use  and  occupation  "  in  a  partnership 


elude  more  property  in  a  sale  than 
that  described  in  the  written  con- 
tract, Osborn  v.  Hendrickson,  ante; 
nor  generally  can  a  contract,  which 
the  parties  intended  to  make,  but 
did  not  make,  be  set  up  in  place  of 
one  which  they  did  make,  but  did 
not  intend  to'  make.  Sanford  v. 
Howard,  29  Ala.  684. 

Where  the  conditions  of  sale  de- 
scribed the  number  and  kind  of  tim- 
ber trees  to  be  sold  by  lot,  but  not 
the  weight  of  the  timber,  it  was  held, 
in  an  action  for  the  purchase-money, 
that  oral  evidence  could  not  be  given 
by  the  defendant  that  the  auctioneer 
had,  at  the  sale,  warranted  the  tim- 
ber of  a  certain  weight.  Rowell  v. 
Edmunds,  12  East.  6:  Shelton  v. 
Livius,  2  C.  &  J.  411.  So  (Tenny  v. 
Mulvaney,  8  Or.  513),  where  a 
contract  was  entered  into  to  deliver 
good,  sound,  merchantable  logs,  to  be 
cut,  from  standing  timber  within  a 
mile  from  a  certain  creeK,  and  there 
was  evidence  that  the  logs  in  ques- 
tion were  cut  within  one-fourth  of 
a  mile  from  the  creek,  and  where 
the  logs  were  cut  and  a  great  many 
of  the  trees  were  rotten,  it  was  held 
that  the  question  was  whether  such 
logs  were  sound  and  merchantable, 
and,  therefore,  that  evidence  tliat 
they  were  not  as  good  as  other  logs 
on  the  creek,  or  whether  they  were 
an  average  lot  with  other  logs  on  the 
lot,  was  not  admissible,  as  the  effect 
of  such  evidence  would  be  to  vary  the 
terms  of  the  contract  from  a  contract 
to  deliver  good,  sound,  merchantable 
logs   to  one  for   the  delivery   of   logs 


as  good  as  other  logs  upon  the  lot,  or 
logs  on  an  average  with  other  logs 
thereon,  which  is  never  admissible. 
Perrine  v.  Cheeseman.  11  N.  J.  L. 
174;  Huffman  v.  Hammer,  14  N.  J. 
L.  269;  Spencer  v.  Tilden,  5  Cow. 
(X.  Y.)  144;  Lowber  v.  Le  Roy,  2 
Sandf.  (X.  Y.)  202;  Donaldson  v. 
Benton,  4  Dev.  &  B.  (X.  C.)  L.  435; 
Singleton  v.  Fore,  7  Mo.  515;  Lane 
V.  Price,  5  id.  101;  O'Harra  v.  Hall, 
4  Ball.  340;  McDowall  v.  Beckley, 
2  Mill  (S.  C.)  Const.  365;  Phillips 
V.  Keener,  2  Overt.  (Tenn.)  329; 
Bond  V.  Jackson,  Cooke  (Tenn.), 
500;  Linard  v.  Patterson,  3  Blackf. 
(Ind.)  353;  Jones  v.  Webber,  1  N. 
Chip.  (Vt.)  215;  Bradley  v.  Bent- 
ley,  8  Vt.  243;  Falkoner  v.  Garrison, 
1  McCord  (S.  C),  209;  Barringer  v. 
Sneed,  3  Stew.  (Ala.)  201;  Hair  v. 
La  Brouse,  10  Ala.  548;  Rogers  v. 
Atkin.son,  1  Ga.  12;  Wynn  y.  Cox,  5 
Ga.  373;  Madison.  &c..  Plank  Road 
Co.  V.  Stevens,  6  Ind.  379;  Irwin  v. 
Ivers,  7  Ind.  308;  Warren  v.  Crew, 
22  Iowa,  315;  Theurer  v.  Schmidt, 
10  La.  Ann.  125;  Ferguson  v.  Glaze, 
12  id.  67;  Lesseps  v.  Wicks,  id.  739; 
Young  V.  Frost,  5  Gill  (Md.),  287; 
Albert  v.  Ziegler,  29  Pa.  St.  50;  Ev- 
ans V.  Evans,  id.  277;  Smith  v.  Mc- 
Call,  1  McCord  (S.  C),  220;  Wade 
V.  Odeneal,  3  Dev.   (X.  C.)   L.  423. 

^Morrill  v.  Morrill    (Mich.,   1904), 
101  X.  W.  209. 

*Cundev   v.    Hall,    208    Penn.    335, 
342,  57  A.  761. 

°  Van  Husan  v.  Omaha  Bridge  &  T.. 
R.  Co.,  118  Iowa,  366,  92  X.  W.  47. 


Sec.  20.  J  Parol  Evidence  as  to  Weitings.  65 

agTeement  plainly  imports  a  leasehold  interest,  and  evidence  of  the 
understanding  and  conduct  of  the  parties  cannot  be  introduced  to 
change  it.^  Parol  evidence  cannot  be  used  where  a  contract  men- 
tions "  legal  representatives  "  in  connection  with  "  assigiis,"  to 
show  that  a  power  to  bequeath  by  will  was  thereby  meant,  as  the 
lerm  legal  representatives  has  a  well-defined  meaning.^  So,  evi- 
dence is  inadmissible  to  show  that  the  words  in  a  deed  ^'  bodily 
heirs  "  mean  ^'  children"  rather  than  have  the  ordinary  legal  mean- 
ing of  tenants  in  tail,  in  the  absence  of  anything  in  the  writing  to 
create  an  ambiguity.^  It  is  the  rule,  of  law.  that  the  proceeds  of  a 
mortgage  are  to  be  applied  on  the  mortgage  notes  in  the  order  of 
their  maturity  and  therefore  parol  evidence  of  an  agreement  for 
application  of  the  proceeds  in  a  different  order  is  inadmissible.^ 
Parol  evidence  is  inadmissible  to  show  that  at  the  time  an  option 
to  buy  hides  was  given  it  w^as  agreed  a  payment  was  to  be  made  on 
the  acceptance  of  the  option  where  the  option  was  silent  as  to  the 
time  of  payment,  as  where  nothing  appears  to  the  contrary  delivery 
and  payment  are  presumed  to  be  concurrent  acts.^°  Wliere  an 
agreement  for  sale  of  goods  is  silent  as  to  the  time  of  payment,  pay- 
ment on  delivery  is  implied  and  evidence  is  inadmissible  to  show  a 
contemporaneous  agreement  of  the  parties  to  give  the  buyer  sixty 
days'  credit.^^  Where  a  contract  provides,  "  We  [the  builder]  will 
pay  the  freight  charges,  as  agreed  upon  between  you  and  I,"  evi- 
dence of  an  oral  agreement  that  the  contractor  was  to  pay  the 
charges  is  inadmissible  as  contradicting  the  contract.^^ 

Where  a  deed  conveys  land  described  as  the  west  half  of  a  cer- 
tain quarter  except  one  acre  from  a  certain  corner,  together  with 
the  buildings  thereon,  parol  evidence  is  admissible  to  show  the 
boundary  of  the  acre  intended,  although  it  differs  from  a  square 
and  the  law  is  in  such  case  that  a  square  would  be  presumed.^^ 

"Hart  V.  Hart,  117  Wis.  639,  94  N,  "Minnesota      Sandstone      Co.      v. 

W.  890.           ~  Clark,  35  Wash.  466,  77  Pac.  803. 

'Lullion  V.  Louisville  &  N.  R.  Co.,  ^=  Lego  v.   Medley.  79  Wis.   211,  48 

138  Ala.  650,  35  So.  694.  N.  W.  375.  24  Am".  St.  Rep.  706.     To 

^  Edins  V.   Murphree    (Ala.,   1905),  the  same  eft'ect  see  Mavberry  v.  Beck 

38  So.  639.  (Kan.,  1905),  81  Pac.  191. 

°  Schultz   V.   Plankinton   Bank,   141  Thus,  where  an  agreement  for  the 

Til.    116,   30   N.   E.   346,   33   Am.   St.  sale   of   goods   was    silent   as   to    the 

Rep.  290.  time   of   delivery,   in   which   case   the 

"  Kibler    v.    Caplis    (Mich.,    1905),  law  implies  a  contract  to  deliver  in  a 

103  N.  W.  531.  reasonable  time,  it  was  held  that  oral 

"  Morton  v.  Clark,   181   Mass.   134,  evidence    of    an    agreement    to    take 

63  N.  E.  R.  409.  them  away  imniediixiely  was  inadmis- 


64 


EviDEOS'CE. 


[Chap.  2. 


Sec.  21.  Prior  and  Contemporaneous  Independent  Agreements. 
Incomplete  Contracts. 

But  in  order  to  exclude  oral  proof  of  a  contract,  the  writing  must 
purport  to  be  a  complete  contract.  The  rule  is  that,  in  all  cases 
where  a  writing,  althongh  embodying  an  agreement,  is  manifestly 
incomplete  and  is  not  intended  by  the  parties  to  exhibit  the  whole 
cbgreement,  but  only  to  define  some  of  its  terms,  tile  writing  is  con- 
diisive  as  far  as  it  goes;  but  such  parts  of  the  actual  contract  as 
are  not  embraced  within  its  scope,  may  be  established  by  parol} 
But  it  must  be  remembered  that  this  rule  has  no  force  where  the 
contract  comes  within  the  Statute  of  Frauds,^  as  it  is  contrary  to 
both  the  letter  and  spirit  of  that  statute  to  permiit  a  contract 
coming  within  its  provision  to  rest  partly  in  parol.^  So  where  a 
written  proposal  was  not  accepted,  oral  evidence  of  the  terms  of 
the  contract  is  admissible.*  And  it  would  seem  that  when  a  writing 
is  not  ex  necessitate  legis  (as.  under  the  Statute  of  Frauds),  the 


sible.  Greaves  v.  Ashlin,  3  Camp. 
426;  Halliley  v.  Nicholson,  1  Price, 
404.  So  where  a  contract  oit  sale,  be- 
ing silent  as  to  time  of  payment,  im- 
plies payment  on  delivery,  proof  of 
intended  credit  is  inadmissible.  Ford 
V.  Yates,  2  M.  &  G.  549.  Where  the 
defendant,  the  day  after  a  sale  by 
him  of  flour  to  the  plaintiff,  sent  a 
memorandum  of  the  sale,  "  Sold 
White's  X.  S.,"  and  delivered 
"  White's  X.  S."  accordingly ;  it 
was  held,  that  the  plaintiff  could  not 
show  that  the  contract  was  for 
"  White's  X.  X.  S."  Hamor  v.  Groves, 
15  C.  B.  667.  It  is  observable,  how- 
ever, that  the  four  last  cases  were  for 
non-performance  of  executory  con- 
tracts within  the  Statute  of  Frauds, 
which  ought  to  contain  all  the  terms 
of  agreement.  So  where  the  written 
agreement  was  to  take  goods  on 
board  a  ship  "  forthwith,"  oral  evi- 
dence to  show  tliat  they  were  to  be 
received  on  board  in  two  days  was 
not  allowed.  Simpson  v.  Henderson, 
M.  &  M.  300.  An  absolute  sale  of  a 
reversion  can  not  be  qualified  by 
proof  of  an  oral  agreement  to  appor- 
tion the  accruing  rent,  Flinn  v. 
Calow,  1  M.  &  Gr.  589. 

'Crane  v.  Elizabeth,  &c.,  Assn.,  29 
N.  J.  L.  302 ;  Parker  v.  Miller,  27  id. 
338.    The  Alida,  1  Abb.  Adm.  (U.  S.) 


173;  Sheffield  v.  Page,  1  Sprague, 
285;  Kieth  v.  Kerr.  17  Ind.  284; 
Taylor  v.  Galland,  3  Iowa,  17;  Moss 
V.  Green,  41  Mo.  389;  Webster  v. 
Hodgkins.  25  N.  H.  128 ;  Sale  v.  Dar- 
ragh,  2  Hilt.  (N.  Y.)  184;  Miller  v. 
Fitchorn,  81  Penn.  St.  252;  Cobb.  v. 
Wallace,  5  Coldw.  (Tenn.)  539; 
Winn  V.  Chamberlin,  32  Vt.  318. 
Oral  evidence,  and  a  written  memo- 
randum not  amounting  to  a  contract, 
may  be  concurrently  admitted  to 
prove  the  terms  of  a  contract.  Mo- 
bile Marine  Dock,  &c.,  Co.  v.  McMil- 
lan, 31  Ala.  711.  Where  A.  verbally 
accepts  the  written  proposals  of  B., 
the  contract  is  not  reduced  .  to  writ- 
ing, and  parol  evidence  is  admissible 
as  to  its  terms.  Pacific  Works  v. 
Newhall,  34  Conn.  67.  So  where  there 
was  a  sale  of  a  certain  amount  of 
standing  timber  by  a  contract  partly 
reduced  to  writing,  parol  evidence 
was  held  admissible  to  show,  what 
did  not  appear  by  the  writing,  from 
what  tract  the  timber  was  to  be  cut. 
Pinney  v.  Thompson,  3   Iowa,   74. 

^  Choolam  v.  Kearn,  7  Ves.  211; 
Parterich  v.  Pawlet,  2  Atk.  283; 
Omerad  v.  Hardman,  5  Ves.  722. 

^  Wood  on  Statute  of  Frauds,  736. 

*  Scones  v.  Dowles,  29  L.  J.  Ex. 
122;  see,  also,  Eden  v.  Blake,  13  M. 
&  W.  614. 


Sec.  21.] 


Parol  Evidence  as  to  Writings. 


65 


apparent  deficiencies  of  a  written  agreement  as  to  some  particulars 
of  price,  time  of  delivery,  etc.,  may  be  supplied  by  oral  evidence, 
although  the  jury  would  be  directed  to  presume  a  reasonable  price, 
or  reasonable  time,  etc.,  in  the  absence  of  such  evidence;  for  such 
evidence  does  hot  contradict  or  vary  the  written  document  as  far 
as  it  goes ;  and  it  may  be  that  the  parties  themselves  did  not  in- 
tend to  commit  to  paper  the  whole  of  the  contract.^  Evidence  is 
admissible  to  establish  an  oral  contract  in  part  execution  of  which 
a  written  contract  is  given,  but  not  when  its  purpose  is  to  show  that 
some  of  the  terms  of  the  oral  contract  were  inconsistent  with  the 
written  one,  and  ought  to  be  substituted  for  them,^  and  the  oral 
•contract  can  be  proved  only  with  proof  of  the  original  written  con- 
tract.'' 

It  is  never  admissible  to  show  that  at  the  time  a  written  contract 
was  made,  an  agreement  by  parol  relating  to  the  same  subject- 
matter  was  also  entered  into,  hut  a  parol  agreement  collateral  to  or 
independent  of  such  written  contract,  may  be  shown}  when  it  re- 


'Valpy  V.  Gibson,  4  C.  B.  837. 

'New  Idea  Pattern  Co.  v.  Whelan, 
75  Conn.  445,  53  A.  953.  It  may 
sometimes  be  competent  to  show  that 
a  written  contract  was  a  mere  part 
performance  of  an  entire  verbal  con- 
tract, but  that  familiar  rule  does  not 
apply  where  the  verbal  contract  is 
inconsistent  with  the  written  on^e  or 
where  the  writing  purports  to  con- 
tain the  entire  contract.  So  where 
a  committee  representing  the  owners 
of  certain  property  made  a  certain 
proposition  for  settlement  of  claims 
of  creditors,  which  proposition  was 
accepted  by  the  latter,  this  is  con- 
clusive and  no  further  parol  testi- 
mony caii  be  admitted  to  show  that 
the  settlement  was  any  different 
from  that  expressed  in  the  offer  and 
the  reply.  Corbett  v.  Joannes  (Wis. 
1905),  104  N.  W.  69.  So  a  con- 
tract to  ship  "  f.  o.  b.  cars  "  cannot  be 
varied  by  showing  that  the  con- 
signee agreed  to  furnish  the  cars. 
Vogt  V.  Shienebeck  (Wis.,  1904), 
100  N.  W.  820. 

'Taft  V.  Little,  178  N.  Y.  127,  591, 
70  N.  E.  R.  211. 

'Page  V.  Sheffield,  2  Curt.  (U.  S.) 
377;  Phillips  v.  Preston,  5  How.  (U. 
S.)    278;    Shepherd  v.  Wyrony,  3  W. 


Va.  46;  Heatherley  v.  Record.  12 
Tex.  49;  Flanders  v.  Fay,  40  Vt.  316; 
Marshall  v.  Baker,  19  Me.  402; 
Perry  v.  Central,  &c..  R.  R.  Co..  5 
Cald.  (Tenn.)  138;  Cobb  v.  O'Neal,  2 
Sneed  (Tenn.)  238;  McKinstry  v. 
Runk,  12  N.  J.  Eq.  60;  Creamer  v. 
Stephenson,  15  Md.  211;  Joannes  v. 
Mudge,  6  Allen  (Mass.),  245.  In 
Buzzell  V.  Willard,  44  Vt.  44,  it  was 
held  that  evidence  of  an  oral  agree- 
ment made  collaterally  with  a  deed, 
and  relating  to  the  property  con- 
veyed, but  entirely  independent  of 
the  instrument,  is  admissible.  But 
such  a  parol  agreement  is  not  admis- 
sible to  show  that  the  grantee  agreed 
to  hold  the  land  in  trust  for  the 
grantor's  benefit.  Morrall  v.  Wat- 
terson,  7  Kan.  199;  State  v.  Nash- 
ville, 2  Tenn.  Ch.  755.  Nor  that  it 
was  verbally  agreed  that  the  manure 
on  the  lands  should  pass  with  the 
deed.  Proctor  v.  Gibson,  49  N.  H.  62. 
Nor  to  add  a  covenant  to  the  deed. 
Sawyer  v.  Vories,  44  Ga.  662.  Nor 
to  attach  a  condition  to  the  deed  re- 
pugnant to  its  legal  effect.  Beers  v. 
Beers,  22  Mich.  42.  Or  that  a  deed 
perfect  on  its  face  was  delivered  upon 
condition.  Miller  v.  Fletcher,  27 
Gratt.    (Va.)    403. 


66  Evidence.  [Chap.  2^ 

lates  to  a  matter  about  whicli  the  writing  is  silent/  or  to  show 
a  new  and  indej)endent  contract  relating  to  the  same  subject- 
matter  subsequently  entered  into  by  parol  upon  a  good  considera- 
tion, whether  it  is  a  substitute  for  the  old  contract,  or  is  in  addition 
to  it/"  and  in  such  case,  if  the  new  contract  covers  the  whole  subject- 
matter  of  the  written  one,  it  supersedes  and  extinguishes  it,  and  it 
is  merged  in  the  parol  contract.^^  But  if  the  new  contract  only  re- 
lates to  a  part  of  the  matters  embraced  in  the  written  one,  it  only 
supersedes  the  latter  as  to  the  matters  to  which  it  relates,  leaving 
the  written  contract  in  force  as  to  all  other  matters.-'^  So,  where  a 
writing,  although  embodying  an  agreement,  is  manifestly  incom- 
plete, and  not  intended  by  the  parties  to  exhibit  the  whole  agree- 
ment, but  only  to  define  some  of  its  terms,  the  writing  is  conclusive 
as  far  as  it  goes ;  but  such  parts  of  the  actual  contract  as  are  not 
embraced  within  its  scope,  may  be  established  by  parol  evidence.^^ 
But  this  must  be  understood  as  applying  only  when  the  ivriting 
was  evidently  not  intended'  as  the  complete  contract.  If  the 
parties  intended  that  the  writing  should  embrace  'the  entire  con- 
tract, parol  evidence  is  not  admissible  at  law  to  add  terms  thereto, 
even  though  they  were  omitted  by  mistake.-**  In  the  latter  case 
the  writing  itself  is  the  sole  exponent  of  the  contract  and  cannot 
be  varied  by  parol.^"  It  is  not  enough  for  the  admission  of  extrin- 
sic evidence  that  the  writing  fails  to  express  the  whole  contract 
which  the  parties  made.  On  the  contrary,  it  must  be  apparent 
they  did  not  intend  so  to  do,  and  where  elaborate  contracts  are 
signed  extrinsic  evidence  will  not  ordinarily  be  admitted.^^  The 
rule  stated  may  be  said  to  apply  only  to  informal  instruments  and 
loose   memoranda   which   were   manifestly  not   intended   by   the 

*Keough  V.  McNitt,  6   Minn.   513;  3  Greene   (Iowa),  17;  Moss  v.  Green,. 

Ruggles  V.  Svvarrick,  G  id.  457.  41  Mo.  389;   Webster  v.  Hodgkins.  25 

'"Heatherly  v.  Record.   12  Tex.  49;  X.   H.   128;    Sale  v.  Darrash.  2  Hilt, 

Cummings  \.  Putnam.  19  N.  H.  969;  (X.  Y. )    184;  Miller  v.  Fichthorn,  31 

Van    Biiskirk    v.    Roberts,    31    N.    Y.  Pa.    St.    252;     Cobb    v.   Wallace,     5 

661.  Coldw.    (Tenii.)   539;   Winn  v.  Cliam- 

"  Bernard  v.  Sampson.  12  N.  Y.  561.  berlain,  32  Vt.  318. 

^^  Mowatt  V.  Lord  Londersborough,  ^'' Young  v.  Jacowav,  17  Miss.  212; 

3  E.  &  B.  307 ;  McCullough  v.  Girard,  Crane  v.  Elizabeth,  &c.,  Assn.,  29  N. 

4  Wash.    (U.  S.  C.  C.)    289;   Atwood  J.  L.  302. 

V.  Norton,  27  Barb.   (N.  Y.)   638.  ^°  Perkins      v.      Young,      1       Gray 

"McCullough   V    Girard,    4   Wash.  (Mass.).   389;   Kirk  v.   Hartman,   63 

(U.  S.  C.  C.)   292;  Hunt  V.  Adams,  6  Penn.    St.    97;    Cooke    v.    Bailev,    42 

Mass.   519;   The  Alida,   1   Abb.   Adm.  Miss.  81. 

(U.    S.)     173;     Sheffield     v.    Page,    1  ^°John  O'Brien  Lumber  Co.  v.  Wil- 

Sprague   (U.  S.  C.  C),  285;   Keith  v.  kinson,  117  Wis.  468,  94  N.  W.  337. 
Kerr,  17  Ind.  284;   Taylor  v.  Galland, 


Sec  21.]  Parol  Evidence  as  to  Writings.  67 

parties  to  contain  the  terms  of  their  contract.^^^  For  examplej  where 
a  contract  for  repair  of  a  house  is  loosely  and  artificially  drawn 
and  mentions  only  in  general  terms  the  work  to  be  done  and  the 
materials  to  be  used  and  the  time  of  completion,  these  details  are 
capable  of  parol  proof, ^^  Where  a  contract  for  the  sale  of  lumber 
was  made  by  an  exchange  of  letters  setting  forth  the  agreements  of 
the  parties  in  short  form,  it  was  held  admissible  to  show  a  contem- 
poraneous parol  agreement  that  the  lumber  should  be  scaled  by  a 
scaler  selected  by  one  of  the  parties  and  that  his  -scale  should  con- 
trol. The  court  lays  down  the  following  rule :  "  Where  the  writing 
or  writings,  by  reason  of  their  brevity,  informality,  or  skeleton 
nature,  do  not  of  themselves  import  that  all  the  stipulations  be- 
tween the  parties  with  reference  to  the  subject-matter  were  in- 
tended to  be  expressed  in  them — and  where  the  particular  stipula- 
tion is  of  such  nature  that  the  omission  to  express  it  in  the  writing 
does  not  indicate  that  it  was  not  agreed  upon — ^and  it  in  no  way 
conflicts  with  any  written  stipulation — and  does  not  increase  the 
burdens  of  either  party — parol  evidence  of  such  stipulation  is  ad- 
missible. We  do  not  say  that  all  the  above  conditions  must  exist 
before  the  parol  evidence  can  be  received.  We  only  say  that 
where  they  do  exist,  the  parol  evidence  is  admissible."^^  But  where 
a  contract  consisted  of  a  proposal  to  furnish  scrap  iron  and  was  in 
short  form,  still  evidence  was  held  inadmissible  to  show  that  the 

16a  Thus,  where  a  plaintiff  had  stated  in  the  memorandum,  but  an 
bought  and  paid  for  a  horse  on  a  ver-  additional  term  of  the  contract, 
bal  warranty  by  the  defendant,  and  namelj-,  that  all  accidents  occasioned 
shortly  after  the  purchase  was  com-  by  tlie  shying  of  the  horse  should  be 
pleted,  the  defendant  gave  him  a  paper  at  the  risk  of  the  hirer.  Jeffrey  v. 
in  the  following  form : — "Bought  of  A.  Walton,  1  Stark.  2G7  ;  Hadley  v. 
B.;  a  horse  for  7L— A.  B.,"— the  court,  Clinton,  &c.,  Co.,  13  Ohio  St.  "^502. 
in  an  action  for  breach  of  warranty.  Again,  in  the  sale  of  a  chattel  under 
held  that  the  plaintiff  might  prove  the  value  of  10?..  an  auctioneer  is  not 
the  warranty  by  parol  evidence,  as  bound  by  the  description  of  the  ar- 
the  paper  appeared  to  have  been  tide  contained  in  the  unsigned  print- 
meant  merely  as  a  memorandum  of  ed  catalogue;  but  if,  when  the  ar- 
the  transaction,  or  an  informal  re-  tide  was  put  up  at  auction,  he  pub- 
ceipt  for  the  money,  and  not  as  con-  Ijcly  stated  in  the  hearing  of  the  pur- 
taining  the  terms  of  the  contract  it-  chaser  that  the  description  was  in- 
self.  Allen  V.  Pink,  4  M.  &  W.  140.  correct,  he  will  be  entitled  to  a  ver- 
So,  where  a  person,  after  having  diet  for  the  price  on  giving  parol 
agreed  to  hire  a  horse,  had  given  the  proof  of  such  statement.  Eden  v. 
owner  a  card,  on  which  he  had  writ-  Blake,  13  M.  &  W.  614. 
ten  in  pencil,  "  six  weeks  af  two  ''  Whately  v.  Reese,  128  Ala.  500, 
guineas,   W.   H.,"    the   owner   was    al-  29  So.  606.     ■ 

lowed  to  prove  by  parol  evidence,  not  ''  Gould  v.  Boston  Excelsior  Co.,  91 

indeed   a   different  time  of    hiring   or  Maine    214,    39    A.    554,    64    Am.    St. 

a  larger  rate  of  payment  than  those  Rep.  221. 


68  Evidence.  [Chap.  2. 

real  contract  between  the  parties  was  verbal  and  that  the  written 
contract  was  struck  off  in  a  hurry  to  fix  the  price.'^  Where  an  agi-ee- 
ment  contained  in  a  letter  refers  to  a  prior  conversation  as  em- 
bodying the  understanding  of  the  parties,  the  conversation  may  be 
proved  as  incorporated  by  reference.""  In  an  action  on  a  lien  note 
parol  evidence  is  admissible  to  show  a  contemporaneous,  agreement 
that  the  defendant  might  return  horses  bought  and  cancel  his  note 
if  they  were  unsatisfactory  on  trial.^^  But  as  previously  stated, 
this  rule,  or  rather  exception  to  the  general  rule,  is  confined  wholly 
to  that  class  of  writings  which  are  mere  memoranda,  and  were  man- 
ifestly not  intended  to  express  the  entire  contract  between  the 
parties. 

In  other  words,  the  writing  on  its  face  should  rehiit  the 
presumption  that  it  is  complete,^^  although  it  is  not  necessary  that  • 
it  should  expressly  and  directly  do  so.  Thus,  where  all  the  terms 
of  a  contract  for  the  sale  of  a  crop  of  cotton  were  reduced  to  writ- 
ing, except  as  to  the  time  of  delivery,  it  was  held  competent  to 
show,  by  parol,  that  at  the  time  the  contract  was  entered  into,'  a  day 
was  fixed  for  delivery.^^  But  where  a  contract  for  the  sale  of 
calves  provided  for  delivery  on  certain  specified  dates,  parol  evi- 
dence is  inadmissible  to  show  that  it  was  agreed  that  the  seller 
should  not  be  held  to  exact  dates  as  to  the  delivery  of  the  calves.^* 
So,  where  a  contract  for  the  delivery  of  articles  ^vas  silent  as  to  the 
place  of  delivery,  it  was  held  that  parol  evidence  was  admissible  to 
show  that  at  the  time  the  contract  was  executed,  a  particular  place 
for  delivery  was  agi-eed  upon.^'  It  will,  from  the  last  two  in- 
stances given,  be  seen  that,  contrary  to  the  doctrine  of  some  of  the 
early  cases,^^  the  presumption  which  the  law  raises,  either  as 
to  the  time  or  place  when  or  where  a  written  contract  is  to  be  per- 
formed, may  be  overcome  by  parol  proof  of  a  contemporaneous 
agreement  in  that  respect ;  but  where  a  contract  expressly  provides 
that  it  shall  be  performed  "  within  a  reasonable  time,"  parol  evi- 
dence that  a  particular  time  was  agreed  upon  within  which  it 

"Helper    v.    MacKinnoTi    Mfg.    Co.  "Nebraska  Land  &  Feeding  Co.  v. 

(Mich.,  1004),  101  N.  W.  804.  Trauernan   (Neb.,  1904),  98  N.  W.  37 

"Gould  V.  Magnolia  INIetal  Co.,  207  (containing    list    of    matters  which 

111    172 ;  69  N.  E.  R.  896.  may  be  shown  by  parol ) . 

2>Gilman  Bros.  v.  Williams,  74  Vt.  "  IMussleman   v.     Stoner,    31  Penn. 

327-;   52  A.  428.  St.  268.                         ^       .       ,  o. 

*=  Jeffrey  v.  Walton,  ante.  '"  Barringer     v.      Sneed,      1  btew. 

« Johnston  v.  McRary,  5  Jones   (N.  (Ala.)   201;   Ely  v.  Adams,  19  John. 

C.)  L.  369.  (N.  Y.)   312. 


Sec.  21.] 


Parol  Evidence  as  to  Writings. 


691 


should  be  performed  is  not  admissible.  In  such  a  case  the  jury 
must  determine  what  is  a  reasonable  time,  and  the  contract  is  com- 
plete.^^ 


"  Jenkins  v.  Lykes,  19  Fla.  148. 
In  the  case  of  a  blank  indorsement 
of  a  bill  or  note,  upon  the  principle 
already  stated,  the  immediate  parties 
to  the   instrument  are  not   precluded 
from   giving  .evidence    of    parol   con- 
temporaneous    stipulations     showing  ■ 
that   a   restricted   operation   was    in- 
tended to  be  given  to   the  signature, 
or  that  the  transfer  was  upon  trust, 
and  not  absolute    (Stackpole  v.  Arn- 
old,    11       Mass.       32;     Susquehanna 
Bridge  v.   Evans,  4  Wash.    (U.  S.  C. 
C  )    480;    Banlc   of   United   States  v. 
Dunn,  G  Pet.    (U.   S.)    51;     Brock  v. 
Thompson,    1    Bailey     (S.    C),    322; 
Barry  V.  Morse,  3  N.  H.  132;   Fuller 
V    McDonald,  8  Me.   213;    Wright  v. 
Latham,  3  Murph.   (N.  C.)   208;  Bar- 
rows  V.    Lane,     5     Vt.    161;    Pike   v. 
Street,  1  M.  &  M.  226 ;  Hill  v.  Ely,  o 
S    &  R.   (Penn.),  363;   Dean  v.  Hall, 
17    Wend.    (N.   Y.)    214;    Perkins   v. 
Catlin,   11  Conn.  213;   Smith  v.  Bar- 
ber   1  Root    (Conn.),  207;   Barker  v. 
Prentiss,  6  Mass.  430;  Butler  v.  Sud- 
deth,   6   Mon.    (Ky.)    541;    Daniel   v. 
MacRae,    2    Hawks     (N.    C),    590; 
Granby    v.     Harden,     7    Taunt.    163 ; 
Brent  v.  Metropolis  Bank,  1  Pet.   (U. 
S.)    89;   Landsale  v.  Brown.  3  Wash. 
(U.  S.  C.  C.  404)  ;  for  in  such  cases 
the"  contract     is     left   incomplete   by 
the  parties.     So,  where  a  contract  is 
silent  as   to  the   quantity   of   certain 
articles   to   be     delivered,    parol    evi- 
dence is  admissible  to  show  it.    Thus, 
where  a  receipt  was  given  for  money 
in  this  form:  "  Rec'd  of  H.  S.  Potter, 
five   liundred   dollars,   as   advance   on 
my  wheat,  to  be  delivered  before  the 
1st  of  July,  at  the  Rochester  price, 
it  was  held  that  parol  evidence   was 
admissible    to    show    that    the    agree- 
ment was  to  deliver  600  or  700  bush- 
els of  wheat  before  the  1st  of  July  at 
the  plaintiff's  warehouse,  and  was  to 
have   the   Rochester   market   price   at 
any  time  before  that  day.   which  he 
might   elect.      Potter   v.   Hopkins,   2^3 
Wend.   (N.  Y.)   417;  Norton  v.  Wood- 
ruff  2  N.  Y.  153;  Young  v.  Bushnell, 
8  Bos.    (N.  Y.)    1;  Lent  v.  Hodgman, 
15  Barb.  (N.  Y.)  274. 


So  in  various-  cases  of  a  somewhat 
similar  nature,   where  a  writing  has 
been   executed   by    way   of    part   per- 
formance merely  of  a  parol  contract. 
A    familiar     illustration    is    where   a 
chattel  has  been  sold  with  warranty 
not  in  writing,  and  a  note  given  lor 
the     purchase-money.       Clearly     the 
note,     in    such    instances,    would    not 
merge  the  parol   contract.     Shepherd 
V    Temple,  3  N.  H.  455 ;   Reab  v.  Mc- 
Allister, 8  Wend.    (N.  Y.)    116;  Mc- 
Culloch   V.    Girard,    4    Wash.    (U.    S. 
C.   C.)    289.      So   a  parol   agreement 
between     the     parties     was     entered 
into,  relating  to  the  transfer  of   cer- 
tain  shares   of   stock   in   a   bank   not 
then    completely    organized.      At    the 
conclusion   of   the  agreement,  the  de- 
fendant signed  a  paper,  promising,  in 
a  "cneral  wav,  to  transfer  the  shares 
as"  soon    as    books    for   that    purpose 
should  be   opened  by  the  bank.     The 
defendant  contended  that  this  instru- 
ment    should   be  treated  as  evincing 
the    entire    agreement,    and    that    no 
parol   evidence    could    be    received    of 
stipulations  not  contained  in  it.     Th3 
court,  however,  deemed  it  a  question 
of   fact  for  the  jury  whether  the  in- 
strument was  given  in  full  execution 
of  the  parol  contract  or  in  part  mere- 
ly; and  Washington,  J.,  who  deliv- 
ered the  opinion,  said — "  if  it  should 
turn  out  that  it  formed  a  part  of  the 
agreement  that   such   a  paper  should 
be  given,  or  that  a  paper  of  that  de- 
scription was,  in  the  ordinary  course 
of   the    defendant's     business,    in    re- 
spect to  transactions  of  this  nature, 
given   by   him,  evidence  of   the   parol 
contract  will  be  proper,  and  will  not 
violate  any  of  the  rules  of  evidence." 
McCullough  V.  Girard,  ante.       In  an 
action   brought   to   recover   a   sum   of 
money,  for  which  the  defendants  had 
signed    a    writing   whereby     they   ac- 
knowledged  its   receipt  of   the   plain- 
tiff "  by  the  hands  of  B.  to  be  account- 
ed for,"  parol  evidence  on  the  part  of 
the   defendants   to   show   that   before 
the  writing  was  signed,  the  plaintiff 
being   indebted   to  L.,  and   L.   to  the 
defendants,   it  was   agreed   that   this 


TO 


Evidence. 


[Chap. 


A  plain  and  well-established  exception  to  the  general  doctrine 
which  regards  all  anterior  and  contemporaneons  stipulations  and 
representations  as  merged  in  the  written  contract,  exists,  where  one 
party  sues  the  other,  alleging  as  the  gravamen  of  the  action,  some 
fraud  of  the  latter,  by  which  the  former  was  induced  to  enter  into 


money  should  be  paid  to  the  defend- 
ants in  part  payment  of  their  claim 
against  L.,  and  in  part  satisfaction  of 
L.'s  claim  against  the  plaintiff,  was 
held  admissible.  The  court  said 
the  instrument  was  not  a  mere 
receipt,  and  therefore  liable  as  such 
to  be  varied;  nor  was  it  one  of 
those  writings  which  are  to  be  re- 
garded as  merging  all  previous  ne- 
gotiations; they  viewed  it  as  given 
merely  in  part  execution  of  the  parol 
contract,  and  therefore  the  latter 
might  be  proved.  Gerrish  v.  Wash- 
burn, 9  Pick.  (Mass.)  338.  In  an- 
other case,  M.  filed  his  bill  in  chan- 
cery, claiming  a  lien  on  lands,  sold  to 
him  by  J.  for  an  unpaid  balance  of 
the  purchase-money.  The  bill  charged 
that  at  the  time  of  the  purchase  the 
number  of  acres  in  the  tract  sold  was 
not  ascertained;  but  it  was  agreed  to 
estimate  the  quantity  of  300  acres, 
with  the  understanding  that  a  sur- 
vey should  subsequently  be  made,  and 
if  the  tract  should  turn  out  to  con- 
tain more  land,  the  excess  should  be 
paid  for  at  the  same  rate  per  acre  as 
the  three  hundred  acres,  the  sup- 
posed number;  that  with  this  vxnder- 
standing  a  bond  of  conveyance  was 
executed  by  M.  on  the  17th  of  May, 
1826,  and  a  bond  for  the  purchase- 
money,  according  to  the  estimate 
above  mentioned,  by  J.  on  the  day 
following;  that  a  survey  of  the  land 
was  afterwards  made,  and  it  was 
found  to  contain  a  surplus  of  230 
acres  over  the  estimated  quantity; 
and  for  the  price  of  the  latter  the 
complainant  proceeded,  he  having 
previously  assigned  the  bond  for  the 
other  part  of  the  purchase-money  to 
one  B.  This  bond  was  not  produced, 
and  the  court  declined  deciding  as  to 
the  existence  of  the  lien  until  the 
contents  of  the  bond  should  be  proved 
in  some  way.  But  they  said  that, 
unless  there  was  something  in  the 
structure  of  the  ])ond  which  negatives 
the  lien,  it  would  have  to  be  enforced. 


In  respect  to  the  parol  proof  relied 
on,  they  added — "  On  the  supposition 
that  the  bond  is  a  mere  obligation 
for  the  payment  of  money,  without 
reciting  the  contract  of  sale,  there 
could  be  no  possible  legal  objection  to 
the  admissibility  of  the  evidence  in 
relation  to  the  excess  of  land  above 
three  hundred  acres.  It  is  in  this  i 
light  we  have  supposed  it  to  exist.  | 
In  that  view,  the  introduction  of  the  \ 
parol  evidence  would  not  affect  in  ' 
any  manner  the  contract,  as  evinced 
by  the  bond  of  conveyance  and  bond 
for  the  purchase-money,  but  beisig 
evidence  of  a  substantive  independent 
contract,  its  admissibility  could  not 
be  met  bv  any  legal  objection."  Hall 
V.  Maccubin,  G  G.  &  J.  (Md.)  107. 
On  the  same  principle,  where  there 
is  a  writing  importing  a  sale  of  per- 
sonal property,  or  any  other  instru- 
ment of  transfer,  it  will  preclude  the 
vendee  from  proving  an  agreement 
between  him  and  the  vendor,  contem- 
poraneous with  the  instrument,  and 
consisting  with  its  terms,  that  the 
value  of  the  property  should  be  ap- 
plied to  the  payment  of  the  defend- 
ant's debts.  McCreary  v.  McCrearv,  5 
G.  &  J.  (Md.)  147.  The  last  case, 
like  the  one  preceding  it,  goes  on  the 
proposition  that  parol  evidence  is  ad- 
missible, in  cases  of  written  '  instru- 
ments, to  prove  collateral  and  inde- 
pendent facts,  about  which  the  writ- 
ing is  silent.  In  a  ease  in  Indiana, 
Kelsey  and  Dickson  being  partners 
in  a  mill  which  they  had  built,  en- 
tered into  a  written  agreement  stat- 
ing inter  alia  that  Dickson  had 
bought  Kelsey's  interest  in  the  mill 
for  500  dollars,  to  be  paid  in  certain 
installments.  Kelsey,  in  an  action 
against  Dickson  for  the  purchase- 
money,  was  permitted  to  show,  by 
parol  e\-idence,  that  the  sum  of  500 
dollars  which  Dickson  was  to  pay 
Kelsey  for  his  interest  in  the  mill 
was  exclusive  of  the  expense  that 
liad  been  incurred  in  building  it,  and 


See.  21.] 


Parol  Evidence  as  to  Writings. 


71 


the  contract.  It  has  been  laid  down  in  broad  terms,  that  the  rule 
which  prefers  written  to  unwritten  evidence,  does  not  so  apply  as 
•to  exclude  the  latter,  when  its  object  is  to  prove  that  the  former 
had  been  fraudulently  obtained,  and  thereby  to  avoid  the  contract 
evidenced  by  it,  or  secure  indemnity  to  the  party  injured.^^ 


that  those  expenses  -were  to  be  paid 
by  Dickson.  Kelsev  v.  Dickson,  2 
Blackf.    (Ind.)    2.3G;"3  id.  189. 

=^Cozzens  v.  Whitaker,  3  S.  &  P. 
(Ala.)  329;  see  Becker  v.  Vrooman, 
13  John.  (N.  Y.)  301;  Johnson  v. 
Miln,  14  Wend.  (N.  Y.)  195;  per 
Marshall,  C.  J.,  in  Tayloe  v.  Riggs, 
1  Pet.  (U.  S.)  591;  pei  Kent,  C.  J., 
in  Mimiford  v.  MTherson,  1  John. 
(N.  Y.)   44. 

In  an  action  on  tlie  case  for  deceit 
in  the  sale  of  a  slave,  though  there 
■was  a  written  bill  of  sale,  containing 
a  warranty  of  soundness  in  "  body, 
mind  and  title."  yet  it  was  held  that 
parol  evidence  going  to  prove  other 
representations  made  by  the  vendor 
at  the  time,  such  as  that  the  slave 
Avas  industrious  and  free  from  vice, 
whereas  he  knew  the  contrary  to  be 
the  fact  was  admissible.  C'ozzens  v. 
TVliitaker,  3  S.  &  P.  (Ala.)  322;  S. 
P.  M'Farlane  v.  Moore,  1  Tenn.  174; 
see  Johnson  v.  Brockeiuank,  2  Hill 
(N.  Y.)  353;  Smith  v.  Williams, 
Murph.  (N.  C.)  426;  Wren  v.  Ward- 
law,  i  Ala.  3G3;  Mumford  v.  MTher- 
son, 1  John  (X.  Y. )  418;  Fleming  v. 
Slocum,  18  John.  (N.  Y.)  403.  So, 
where  the  bill  of  sale  of  a  slave  con- 
tained a  warranty  of  soundness,  but 
expressly  excepted  the  "phthisic;"  it 
was  held  that  tlie  vendee  might  nev- 
ertheless prove,  in  an  action  for  de- 
ceit, that  the  vendor  represented  the 
slave  as  having  the  phthisic  only 
slightly,  whereas  he  knew  her  to  be 
in  the  last  stage  of  that  disease. 
Hanks  v.  M'Kee,  2  Litt.  (Ky.)  227. 
But  in  Louisiana,  in  an  action  on  a 
note  given  for  the  price  of  a  slave, 
the  defendant  set  up  that  the  slave 
was  in  the  habit  of  running  away, 
and  that  the  plaintiff  knew  this  to 
be  the  case  when  he  sold  him.  The 
bill  of  sale  was  under  seal,  and  ex- 
pressly stated  the  slave  to  be  a  "run- 
away and  a  drunkard."  The  defend- 
ant introduced  evidence  to  show  that 
the   plaintiff   falsely  represented  this 


as  a  qualified  vice.     The  court,  how- 
ever, held  him  concluded  by  the  deed. 
Bayton   v.   Towles,   5   Mart.    (La.)     1. 
Warranty  is  a  contract,  and  being  es- 
tablished by  sufficient  proof,  it  is  not 
admissible  to  show  that  the  represen- 
tations    were     made     in    good    faith. 
Brisbane   v.    Parsons,   33   N.   Y.    332. 
A  bill  of  sale  in  this  form:   Mr.   W. 
M.,  bought  of  B.  8.  atid  B.,  specify- 
ing the  articles  and  their  prices  and 
the  aggregate  amount,  delivered  with 
the    goods,    constitutes    a    valid    sale, 
which     cannot     be    contradicted     by 
parol    evidence   offered    to    show    that 
the  transaction   was   not  a   sale,   but 
only  a  bailment.     Bonesteel  v.  Flack, 
41  Barb.   (N.  Y.)   435.     When  such  a 
bill  is  delivered  on  the  sale  of  a  horse, 
adding  to  it  the  words  "^  received  pay- 
ment," signed  by  the  seller,  it  is  ad- 
judged a  receipt,  and  not  a  contract  or 
bill  of  sale  wliich  will  exclude   parol 
evidence  of  a  warranty  of  the  sound- 
ness  of   the   horse.     Filkins   v.   Why- 
land,  24  N.  Y.  338,  nor  as  containing 
the   terms   of  tlie  contract   itself.   Al- 
len V.  Pink,  4  M.  &  W.  140;  Dunn  v. 
Hewitt,  2  Den.   (N.  Y. )  637;  Blood  v. 
Harrington,  8   Pick.    (]Mass.)    552.  In 
Hawson  v.  Henderson,  21   N.  H.  224, 
parol   evidence  of   the  warranty   was 
received,  through  there  was  a  formal 
bill  of  sale.     The  instrument,  signed 
and  delivered  by  the  seller  as  a  mem- 
orandum of  the  sale,  is  evidence  of  a 
contract    (Long  v.  Wheeler,  25  N.   Y. 
520) — an  incomplete  contract,    (Koop 
v.   Handy,  41   Barb.    [N.  Y.]   454.)  — 
not   excluding  proof  of   warranty   by 
parol  evidence.  Parol  evidence  should 
not  be   received  to  vary  the  teims  of 
a  written  agreement,  and   though  re- 
ceived erroneously  it  is  still  the  duty 
of  the  court  and  jury  to  give  effect  to 
the  written  in  opposition  to  the  ver- 
bal contract.     (Durgin  v.  Ireland  and 
Pruden,    14    N.    Y.    322.)        Where   a 
perscn  was  induced  to  purchase  land, 
by   a   fraudulent    representation    that 
a      certain    privilege    was    connected 


72 


Evidence. 


[Chap.  2. 


But  where  the  writing  is  comi3lete,  all  prior  negotiations  are 
merged  therein.-^^     Thus,  parol  evidence  is  inadmissible  to  vary 


with  the  land,  which  the  vendor  knew 
was  not  included  in  the  deed ;  it  was 
held  that  the  vendee  might  recover. 
Monell  V.  Colden,  13  John.  (N.  Y.) 
395;  see  also  Russell  v.  Rogers,  15 
Wend.  (N.  Y.)  351;  Johnson  v.  Miln, 
14  id.  199.  And  in  Louisiana,  fraud  in 
the  sale,  in  such  case,  was  allowed  to 
be  proved  by  way  of  defense  to  an 
action  for  the  purchase-money. 
Broussard  v.  Sudrigue,  4  Mill  (La..) 
347.  So  in  South  Carolina;  and  even 
representations  founded  simply  in 
mistake,  are  there  admissible  as  a  de- 
fense, either  to  the  whole  action  or 
pro  tanto,  as  the  case  may  be.  Means 
V.  Brickell,  2  Hill    (S.  C.)   657. 

2Sa  Thus  in  a  Connecticut  case,  Fitch 
V.  Woodruff  Iron  Works,  29  Conn.  82, 
the  defendants  made  a  written  con- 
tract with  the  plaintiff  to  make  and 
set  for  him  "  one  drop  flue  boiler,  Q'^/2 
feet  in  diameter,  and  24  feet  long, 
with  all  tlie  iron  work  belonging  to 
it — all  the  work  to  be  done  in  the 
best  manner  and  of  the  best  material, 
and  satisfactory."  In  a  suit  on  the 
contract,  in  which  the  plaintiff 
claimed  that  the  boiler  was  not  prop- 
erly made  or  set,  he  offered  to  show 
that,  during  the  negotiations  which 
resulted  in  the  making  of  the  con- 
tract, he  informed  the  defendants  how 
much  machinery  the  old  boilers  then 
in  his  mill  would  operate,  and  that 
he  wanted  a  new  boiler  of  the  same 
efficiency,  and  that  the  defendants  as- 
sured him  that  the  boiler  which  they 
would  make  s'hould  be  as  efficient  as 
tlie  old  ones,  and  consume  at  least 
one-third  less  fuel,  and  that,  on  the 
faith  of  this  assurance,  he  entered 
into  the  agreement;  with  further  evi- 
dence that  the  boiler  consumed  more 
fuel  and  was  less  efficient  than  the 
old  ones.  It  was  held  that  the  nego- 
tiations were  merged  in  the  written 
agreement,  and  that  the  evidence  was 
inadmissible. 

So  where  the  owner  of  land  entered 
into  a  contract  under  seal  with  a 
railroad  company  to  convey  to  the 
company  a  right  of  way  over  his  land, 
in  consideration  of  $1,  and  of  their 
building  their  road,  etc.,  it  was  held 


that  evidence  was  not  admissible  in 
an  action  to  enforce  the  contract  to 
prove  a  verbal  agreement  on  the  part 
of  the  company  to  fill  up  a  sluice 
upon  the  land,  as  part  consideration 
of  the  conveyance.  Purinton  v. 
Northern  111.  R:  R.  Co.,  46  111.  297. 
In  a  New  Hampshire  c  ase,  Pills- 
bury  V.  Locke,  33  N.  H.  96, 
the  defendant  contracted  in  writing 
to  take  all  the  white  oak  timber  upon 
the  plaintiff's  land  that  was  "  suita- 
ble for  ship  timber."  It  was  held  that 
evidence  of  declarations  made  at  the 
time  when  the  contract  was  entered 
into,  that  the  vessel  for  which  he  de- 
signed the  timber,  was  a  small-sized 
one,  and  that  he  wanted  the  small 
timber  upon  the  lot  to  put  into  the 
top  of  the  vessel,  for  the  purpose  of 
shoAving  what  sized  timber  he  wanted, 
was  inadmissible.  In  another  New 
Hampsliire  case,  Hadydon  v.  Wal- 
dron,  9  X.  H.  60,  A.  entered  into  a 
written  agreement  with  B.  to  haul  all 
the  logs  upon  a  certain  lot  to  another 
place,  before  a  certain  period.  In  an. 
action  upon  such  agreement  it  was 
held  that  A.  could  not  introduce  evi- 
dence to  show  that  B.  said,  at  the 
time  of  making  the  contract,  that,  if 
there  should  not  be  snow  enough,  he 
•  must  leave  them  on  the  groimd.  In 
a  New  York  case,  Mallon  v.  Story,  2 
E.  D.  S.  (N.  Y.  C.  P.)  331,  the  plain- 
tiff', by  a  written  agreement,  bound 
liimself  to  labor  on  a  railroad  at  five 
shillings  a  day,  and  at  the  same  time, 
by  parol,  was  promised  twelve  shill- 
ings per  day  if  employed  on  rock 
work.  It  was  held  tliat  the  written 
agreement  being  general  in  its  terms 
could  not  be  controlled  by  evidence  of 
the  parol  promise,  and  in  the  absence 
of  any  deceit  as  to  the  contents  of 
the  written  agreement,  the  plaintiff 
though  an  ignorant  man,  could  recov- 
er on  that  only.  So,  where  there  \^as 
a  written  agreement  to  deliver  "  25,- 
000  pale  brick  for  three  dollars  per 
M,  and  SO.OuO  hard  brick  for  four  dol- 
lars per  M  cash,''  parol  evidence  was- 
held  inadmissible  to  show  that  the 
parties  intended  the  delivery  to  be  in 
parcels,   payment   for   each   parcel   to 


Sec.  21.] 


Parol  Evidence  as  to  Writings. 


73 


■what  appears'  to  be  a  complete  contract  of  adoption  by  evidence 
that  the  adopting  party  agreed  with  the  mother  of  the  child  to 
leave  it  all  his  property  on  his  death.-**  Where  by  contract  the 


be  due  as  it  was  delivered.  Baker  v. 
Higgins,  21  N.  Y.   397.     So,  where  a 
written  contract  made  the  inspection 
and  determination  of  one  S.  as  to  the 
quality  or  grade  of  certain  hops,  con- 
clusive upon  the  parties,  evidence  of- 
fered to  show  tliat  they  were  of  in- 
ferior quality  and  worthless,  was  held 
inadmissible.      Clinton   v.    Brown,   41 
Barb.    (N.   Y.)22G.      So,   where  there 
was  writing,  either  in  the  body  of  a 
written  agreement  or  in  the  form  of 
a    party's   signature,    indicating   that 
the  obligatioii  thereby  created  was  in- 
tended to  be  any  other  than  a  person- 
al obligation  on  his  part,  it  was  held 
that  parol  evidence  was  inadmissible 
to   siiow  that  the  agreement   was   in 
fact  the  obligation   of  third   persons, 
and  that  such  party  signed  the  agree- 
ment as  their  agent.  Babbet  v.  Young, 
51   Barb.    (N.  Y. )    4G0.     Where  there 
was  a  written  agreement  to  ship  hogs 
to   New  York,    evidence    of  a   verbal 
agreement  that  they  should  be  shipped 
by  a  certain  one  of  two  usual  routes 
was  rejected.    Webster  v.  Paul,  10  0. 
St.  531.     A  contract  for  masonry  was 
perfectly  clear  in  its  specifications  as 
to  quality,  etc.     The  work  never  hav- 
ing been  accepted,  the  contractor  su- 
ing for   damages,   attempted  to   show 
by  parol  that  the  understanding  and 
agreement  of  the  parties  was  that  the 
work  should  be  done,  not  according  to 
tiiG  specifications,  but  like  other  work 
previously  done  by  the  same  contrac- 
tor for  other  parties ;   that  the  speci- 
fication in  the  contract  was  a  printed 
form   made   for   all    contracts   entered 
into   by  the  commissioners   of  works, 
and   not   prepared   with   reference   to 
this    particular     contract.       The    evi- 
dence was  excluded.     Walker  v.  Man- 
ning, 6  Iowa,  519.     In  an  action  by  a 
contractor    for    carrying    the     mails 
against  a   sub-contractor   for   default 
in  performing  the  sub-contract,  parol 
evidence  was  held  to  be  inadmissible 
to  show  that  the  plaintiff  agreed  to 
obtain  the  consent    of    the  post-office 
department  to  a  transfer  of  the  con- 
tract   to    the    defendant.      Pierce    v. 


Walker,  23  Iowa,  424.  Where  the 
plaintiff,  in  an  action  on  a  contract 
for  constructing  a  canal,  oflTered  to 
prove  that  the  defendants,  either  at 
the  time  when  the  contract  was  exe- 
cuted, or  in  the  preliminary  negotia- 
tions concerning  it,  verbally  promised 
him  to  construct  a  slope  wall  against 
the  embankment  as  the  work  ad- 
vanced, which  would  have  prevented 
it  from  being  swept  away  by  the 
ffoods,  it  was  held  that  such  evidence 
was  inadmissible  to  control  or  vary 
the  contract  in  writing,  in  not  com- 
ing within  the  rule  allowing  the  in- 
troduction of  evidence  as  to  the  ac- 
tual state  of  things  at  the  time  when 
a  (iontract  in  writing  is  made,  to  aid 
in  its  construction.  Bovle  v.  Agawani 
Canal  Co.,  22  Pick.  (Mass.)  381.  It 
is  hardly  necessary  to  say  that  parol 
evidence  is  never  admissible  to  show 
a  contemporaneous  agreement  incon- 
sistent with  that  which  is  written; 
as,  that  when  a  contract  for  the  pay- 
ment of  money  was  executed,  it  was 
agreed  that  property  instead  of 
money  should  be  accepted;  Roundtree 
V.  Gilroy  57  Tex,  176;  Van  Vechten 
v.  Smith,  59  Iowa,  173.  Nor  in  an 
action  on  a  note  can  it  be  shown  that 
a  mistake  was  made  in  arriving  at 
the  amount  for  which  it  was  given. 
Clute  V.  Frasier,  58  Iowa,  268;  or 
that  when  a  contract  was  entered  into 
by  A.,  to  pay  B.'s  debts,  it  was  agreed 
by  parol  that  a  debt  due  from  B.  to 
C.  was  not  included,  Brenner  v. 
Luth,  28  Kan.  581;  or,  that  under 
a  contract  by  A.  to  ship  to  B.  a  cer- 
tain quantity  of  goods,  it  was  agreed 
that  he  should  only  shin  what  he 
then  had  on  hand,  Schreiber  v.  But- 
ler, 84  Ind.  576,  because  in  all  these 
instances  the  effect  of  the  evidence  is 
to  vary  the  written  contract.  The 
illustrations  given  will  furnish  a  fair 
test  by  which  to  determine  when  pa- 
rol evidence  is  or  is  not  admissible  to 
set  up  an  independent  parol  agree- 
ment. 

"Brantingham  v.   Huff,   174  N,  Y. 
53,  524,  66  N.  E.  R.  620. 


^4  Evidence.  [Chap.  2. 

defendant  was  to  furnisli  logs  and  the  plaintiff  to  saw  them,  an 
oral  agreement  to  build  a  log  slide  for  delivery  to  the  plaintiff's, 
mill  was  held  inadmissible,  as  the  written  contract  appeared  com- 
plete.^** Where  an  order  for  goods  contained  a  statement  that  "  all 
understandings,  conditions  and  agreements  between  -the  buyer  and 
the  salesman  must  be  stated  in  the  order,"  it  is  not  open  to  the 
buyer  who  gave  the  order  to  show  that  it  was  given  on  the  under- 
standing that  he  was  to  be  the  sole  distributive  agent  of  the  seller 
in  a  certain  territory. ^^  Where  a  contract  of  agency  provides  that 
an  agent  shall  have  the  right  to  sell  goods  in  a  certain  district  a 
parol  agreement  that  this  right  is  exclusive  is  inadmissible  in  evi- 
dence.^" Where  the.  final  letter  appointing  plaintiffs  as  agents 
spoke  of  establishing  a  "  permanent  insurance  business,"  but  made 
no  definite  statement  of  the  duration  of  the  agency,  it  was  held  that 
the  contract  was  complete  in  itself  and  could  not  be  supplemented 
Ijy  parol  evidence  of  the  duration  of  the  agency. ^^  But  a  provision 
in  a  contract  for  payment  "  as  provided  hereafter  "  is  ambiguous 
and  may  be  explained  by  parol  evidence  that  prior  to  the  execution 
of  the  contract  an  agreement  as  to  payment  had  been  made.^^ 
Where  a  party  sigTied  a  contract  to  allow  a  telephone  company  to 
put  its  wires  across  his  land  parol  evidence  is  inadmissible  of  a 
contemporaneous  agreement  that  the  company  was  to  put  its  wires 
only  over  a  certain  portion  of  his  land.^^  A  contract  of  insurance 
cannot  be  varied  by  evidence  of  a  contemporaneous  parol  agree- 
ment with  the  agent. ^^  A  written  contract  to  inscribe  a  word  on  a 
tablet  cannot  be  varied  by  evidence  of  a  contemporaneous  parol 
agTeement  to  write  it  in  raised  letters."  Evidence  of  the  under- 
standing of  the  parties  is  not  admissible  to  explain  the  meaning  of 
the  words,  "  to  be  advertised  until  sold,''  as  this  would  be  a  contra- 
diction of  the  writing. 

'"Mead  v.  Dunlevie,  174  N.  Y.  108,  '* Morrison  v.  Dickey    (Ga.,   1905), 

•66  N.  Y.  658.  50  S.  E.  178. 

5^  Patten- Worsham     Drug     Co.     v.  '=  Southern  Bell  Tel.  &   Tel.   Co.  v. 

Planters      Mercantile      Co.       (Miss.,  Harris,  117  Ga.  1001,  44  S.  E.  885. 

1905),  38  So.  209.  '*  Arguimbau  v.  Germania  Fire  Ins. 

==Eoberts  v.  Minneapolis  Threshing  Co.,  106  La.  139,  30  So.  148. 

Machine  Co.,  8   S.  D.   579,  67   N.  W.  "  Xelson  &  Daniels  v.   Godfrey,   74 

€07.  59  Am.  St.  Rep.  777.  Vt.  470,  52  A.  1037. 

''  Davis   V    Fidelity   Fire  Ins.   Co.,  '*  Wikle    v.    Johnson    Laboratories, 

208  111.  375,  70  N.  E.  R.  359.  132  Ala.  268,  31  So.  715. 


Sec.  22.] 


Parol  Evidence  as  to  Writings. 


75 


Sec.   22.  Receipts,    Releases  and  Tickets. 

An  exception  is  also  allowed,  where  the  writing  is  one  of  that 
character  which  the  law  does  not  regard  as  the  best  evidence  of 
tlie  transaction  to  which  it  relates.  Such  are  general  receipts,  and 
other  instruments  of  the  like  nature/  though  when  these  assume 
the  form  of  a  contract,  they  are  to  be  treated  so  far  as  the  ex- 
clusive medium  of  proving  what  the  parties  agTeed  to.  A  release 
for  a  valid  consideration  of  all  claims  on  account  of  injuries 
suffered  at  a  certain  time  is  not  a  mere  receipt  but  is  a  contract 
and  cannot  be  varied  by  extrinsic  evidence,  as  of  an  agi-eement  to 
furnish  the  plaintiff  medical  service  until  he  should  recover  from 
his  injury,^  or  of  an  additional  agreement  of  employment.^  Bills 
of  parcels  fall  within  the  range  of  the  exception.* 

The  inconclusiveness  of  receipts,  as  such,  has  been  recognized 
and  acted  upon  in  numerous  cases.^     A  receipt  is  not  a  contract, 


*  Baugli  V.  Brassfield,  5  J.  J.  Mar 
(Ky.)  97;  Hitt  v.  Slocum,  37  Vt 
524;  Nye  v.  Kellum,  18  id.  594 
Street  v.  Hall,  20  id.  165;  Jones  v 
Patterson,  1  W.  &  S.  (Penn.)  321 
Badger  v.  Jones,  12  Ark.  371;  Oak 
ley  V.  State,  40  Ala.  392;  Calhoun  v 
Hichardson,  30  Conn.  216;  Hawley  v 
Badger,  15  Cal.  44;  Porter  v.  Chicago 
&c.,  R.  R.  Co.,  20  Iowa,  73;  Dunna 
gan  V.  Dunnagan,  38  Ga.  554 ;  Illi 
nois,  &c.,  R.  R.  Co.  v.  Cowles,  32 
III.  116;  Baugh  v.  Brassfield,  5  J.  J. 
Mar.  (Ky. )  79;  Carr  v.  Minor,  42 
111.  179;  Bringler  v.  Gordon,  14  La. 
An.  274;  Richardson  v.  Reed,  43  Me. 
161;,  Dunham  v.  Bauer,  9  Allen 
(Mass.),  352;  Rowe  v.  Wright,  12 
Mich.  289;  Ben  v.  Wiley,  17  Mich. 
508;  Williams  v.  State,  20  Miss.  58; 
Wallace  v.  Wilson,  30  Mo.  335;  Ed- 
gerley  v.  Emerson,  23  N.  H.  555; 
Furbush  v.  Goodwin,  25  id.  425 ;  Bird 
V.  Davis,  14  N.  J.  Eq.  467;  Wads- 
worth  V.  Alcott,  6  N.  Y.  64:  Bus- 
well  V.  Ponier,  37  id.  312;  Dutton  v. 
Tilden,  13  Penn.  St.  46.  And  this  is 
held  to  be  the  rule  in  some  of  the 
States  where  the  receipt  is  under  seal. 
Jones  V.  Ward,  10  Yerg.  (Tenn.)  160. 
But  in  those  States  where  the  dis- 
tinction between  simple  contracts 
and  specialties  is  preserved,  the  rule 
would  be  otherwise.  State  v.  Mesick, 
1   Houst.   (Del.)    346. 


-  Lanham  v.  Louisville  &  Nashville 
R.  Co.   (Ky.,  1905),  86  S.  W.  680. 

'Atchison,  T.  &  S.  F.  R.  Co.  v. 
Vanordstrand,  67  Kan.  386,  73  P. 
113;  Rapid  Transit  Ry.  Co.  v.  Smith 
(Tex.,  1905),  86  S.  W.  322.  See, 
also.  Smith  v.  Brown,  3  Hawks  (N. 
C),  580:  Ravmond  v.  Roberts,  2  Aik. 
(Vt.)  204;  Stone  v.  Vance,  6  Hamm. 
(Ohio)  246:  but,  see,  Potter  v.  Hop- 
kins, 25  Wend.   (N.  Y.)   417. 

^Harris  v.  Johnson,  3  Cranch  (U. 
S.),  311.  So  where  it  appeared  that 
A.  sold  B.  a  quantity  of  hops,  and 
gave  a  bill  of  parcels,  stating  the 
number  of  bags,  weight,  price,  etc., 
with  a  clause  added  as  follows: 
"  These  hops  are  warranted  to  be  of 
the  best  quality,"  in  an  action 
against  A.  for  a  breach  of  the  war- 
ranty it  was  held  that  A.  was  not 
precluded  by  the  bill  of  parcels  from 
proving  that  the  hops  were  war- 
ranted only  in  case  they  were  carried 
to  a  particular  place.  Wallace  v. 
Brown.  2  N.  H.  596. 

^Goddard  v.  Cutts,  11  Me.  440; 
Chunn  v.  M'Car.son,  2  Dev.  Eq.  (N. 
C. )  73,  74 ;  Beers  v.  Broome,  4  Conn. 
467;  Lingan  v.  Henderson,  1  Bland's 
Ch.  ( Md. )  249  ;  Graves  v.  Key,  3  B. 
&  Ad.  318;  Fairmaner  v.  Budd,  7 
Bing.  574.  In  Fuller  v.  Crittenden, 
9  Conn.  401,  several  of  the  cases  on 
this  subject  were  reviewed  and  the  re- 


76  EviDEJsrcE.  [Chap.  2. 

but  a  mere  admission  or  declaration  in  writing,  and  as  such  may  be 
controverted  or  explained  by  parol  evidence.  So,  a  receipt  for 
$1,250,  "  being  full  payment  of  his  contract,"  may  be  shown  to  be 
signed  subject  to  the  oral  agreement  that,  if  the  plaintiff  should  be 
able  to  prove  that  he  was  entitled  to  payment  in  Japanese  yens 
rather  than  in  American  dollars  the  receipt  was  to  be  void.^  But 
if  a  receipt  in  full  is  given  with  the  knowledge  of  all  the  circum- 
stances, and  there  is  no  mistake  or  surprise  on  one  side,  or  fraud 
or  imposition  on  the  other,  it  will  be  effectual  to  defeat  a  further 
claim. ^  A  receipt  of  a  certain  sum  in  full  of  all  demands,  though 
not  conclusive,  is  prima  facie  evidence  of  a  settlement  between 
the  parties,  and  a  payment  of  the  balance,  and  it  is  erroneous  to 
say  that  it  is  only  evidence  of  the  payment  of  the  sum  specified.* 
The  circumstances  attending  the  execution  of  a  receipt  in  full  of 
all  demands  may  be  given  in  evidence  to  show  that  by  mistake  it 
was  made  to  express  more  than  intended,  and  that  the  creditor  had 
in  fact  claims  that  were  not  included.^  So  a  receipt  in  full  may 
be  explained  or  contradicted  by  parol  evidence  that  it  was,  as  be- 
tween the  parties,  to  have  no  effect  and  that  the  debtor  j)romised  to 
pay  in  full  outside  of  the  receipt. ^° 

A  receipt,  although  evidence  of  the  highest  character  of  the  pay- 
ment of  money  as  stated  in  it,  is  merely  prima  facie  evidence  and 
may  be  explained  or  contradicted  by  parol. ^^  Parol  evidence  is 
competent  to  explain  how  a  receipt  came  to  be  given,  and  what  it 

suit  declared  to  be,  that  such  circum-  under  seal   of  claims  order  wagering 

stances    as    would    lead    a    court  of  contract  transactions,  including  "  any 

equity  to  set  aside  a  contract    (e.  g.  payment  at  any  time  heretofore  made 

fraud,  mistake,   or  surprise)    may  be  ...     either     on     written     or     any 

shown  at  law,  to  destroy  the  effect  of  other   transaction   whatever  "   and   it 

a  receipt.  was  held   that  this   release  barred  a 

°  Komp  V.  Raymond,  175  N.  Y.  102,  claim   on   a    prior   transaction    under 

67  N.  E.  R.  113.  his    real    name,    although    the    prior 

'  Emric  v.  Gilbert,  1  Wright  (Ohio),  transaction  was  not  in  the  minds  of 

764;  Holbrooke  v.  Blodget,  5  Vt.  520;  the   parties,    and   the    defendant   was 

Sessions  v.  Gilbert,  Brayt.    (Vt. )   75;  not  even  aware  of  his  identity. 

Carter    v.    Bellamv,    Kirby     (Conn.),  ^»  Chapel  v.  Clark,  117  Mich.  63,  76 

291 :   Giddings  v.  Munson,  4  Vt.  308.  X.  W.  62,  72  Am.  St.  Rep.  587. 

^  Reid  V.  Reid,  2  Dev.   (X.  C.)   247.  "  Devencenzi    v.    Cassinelli     (Nev., 

'Fire  Insurance  Assn.  v.  Wickham,  1905),  81  Pac.  41,  whei-e  the  court  re- 
141  U.  S.  564,  581,  12  S.  Ct.  84,  fused  to  upset  a  verdict  for  the  plain- 
contra,  Pierson  v.  Hooker,  3  John.  tiff  who  testified  that  he  never  got 
(N.  Y. )  68.  In  Klopot  v.  MetropoM-  any  money  at  the  time  he  signed  a 
tan  Stock  Exchange,  188  Mass.  335,  certain  receipt  for  $500,  and  that  he 
it  appeared  that  the  plaintiff  had  signed  the  receipt  simply  for  the  Re- 
signed, in  a  fictitious  name  in  which  commodation  of  the  defendant, 
he  had  been  doing  business,  a  release 


Sec.  22.] 


Pakol  Evidence  as  to  Writings. 


Y7 


was  intended  for/^  or  to  show  that  a  receipt  was  given  without  con- 
sideration and  as  a  duplicate.^^  Receipts  for  rent  running  to  a 
former  lessee  may  be  explained  by  showing  that  they  were  in  fact 
to  the  later  occupier  of  leased  premises."  On  the  same  principle, 
evidence  was  held  admissible  to  show  that  a  certain  receipt,  "  to 
balance  boiler  account  in  full  "  was  not  to  be  deemed  an  acceptance 
of  the  boiler. ^^  A  receipt  for  money  is  not  exclusive  that  the  debtor 
directed  the  payment  to  be  applied  to  the  account  named  in  the 
receipt.  ^^ 


"  Hennessy   V.   Kennedy    Furniture 
Co.,  30  Mont.  264,  76  Pac.  291. 

i^Truworthy  v.   French,   97   Maine, 
143,  53  A.  1005. 

"Starkweather    v.    Maginnis,     196 
111.  274,  63  N.  E.  R.  692. 

"  Seeger  v.  Manitowoc  bteam  Boiler 
Works,  120  Wis.  11,  97  N.  W.  485. 

^^Lyon    V.    Bean    (Ala.,    1904),    37 
So.  515. 

A  receipt  "  in  full  of  rent  for  fac- 
tory up  to  "  a  particular  ay  is  prima 
facie  evidence  not  merely  that  the 
last  quarter's  rent  ending  on  the  day 
specified  was  paid,  but  that  all  previ- 
ous rent  was  paid.  Patterson  v.  Ack- 
erson,  Edw.  Ch.  (N.  Y.)  427.  Where 
a  receipt  was  indorsed  by  the  agent 
of  the  plaintiff  in  execution  for  a  cer- 
tain sum  "  in  full  of  the  within  exe- 
cution," it  w^as  held  that  evidence 
might  be  admitted  to  show  an  error, 
and  that  the  receipt  was  only  to  be 
in  full  of  ail  the  money  then  made  on 
the  execution.  Singleton  v.  Smith,  4 
Mill.  (La.)  430.  The  receipt  may 
be  explained  by  parol  evidence  of 
usage.  Goodyear  v.  Ogden,  4  Hill 
(N.  Y.),  104;"  Dawson  v.  Kittle,  id. 
107. 

A  receipt  of  property  levied  on  by 
a  sheriff,  containing  the  usual  prom- 
ise to  redeliver  for  the  purpose  of 
satisfying  the  execution,  was  held 
within  the  general  principle  appli- 
cable to  contracts,  and  not  liable  to 
be  varied  by  parol  evidence  (Curtis 
v.  Wakefield,  15  Pick.  [Mass.]  437; 
Brusley  v.  Hamilton,  15  id.  40)  ; 
and  an  agreement  of  the  officer  and 
the  creditor,  contemporaneous  with 
the  receipt,  that  they  would  relieve 
the  receiptor  by  taking  back  the 
property,   is   merged   in   the   writing. 


Curtis  V.  Wakefield,  15  Pick.  (Mass.) 
437.  But  a  recital  or  statement  of 
the  value  of  the  property  in  such  or 
the  like  receipts  will  not  generally 
conclude  the  party  giving  them,  even 
as  in  favor  of  the  other  party  ;  other- 
wise, however,  where  the  party  giv- 
ing the  receipt  has  wilfully  refused 
to  return  the  property,  or  has  de- 
stroyed it,  etc.  Bancroft  v.  Parker, 
13  Pick.  (Mass.)  192.  Where  a  re- 
ceipt was  collateral  to  the  instru- 
ment declared  on,  and  used  by  a 
stranger  against  a  party,  it  was  held 
that  the  latter  might  contradict  or 
vary  it  by  parol.  Badger  v.  Jones, 
12  'Pick.    (Mass.)    371. 

Indeed,  in  regard  to  mere  written 
admission  of  various  kinds,  they  are 
seldom,  if  ever,  conclusive  against  the 
party  making  them  save  as  in  favor 
of  some  one  who  has  been  drawn  in 
to  act  upon  the  assumption  of  their 
being  what  they  import  on  their  face. 
But,  even  as  in  favor  if  those  who 
have  been  drawn  in  to  act,  such  ad- 
missions will  not  conclude,  except  for 
their  own  proper  ol)jeet,  and  while  the 
writing  evincing  them  continues  in 
force.  Hence,  though  a  receiptor  of 
property  levied  on  by  an  officer  will 
generally  be  precluded  from  showing 
title  in  "himself,  as  against  the  officer, 
yet,  where  A.  gave  such  a  receipt,  in 
"which  he  admitted  the  property  to 
belong  to  S.,  the  defendant  in  the 
execution,  and  the  property  was  af- 
terwards redelivered  to  the  sheriff" 
pursuant  to  the  terms  of  the  writing, 
it  was  held  that  tlie  receiptor  was  not 
estopped  by  anything  in  the  writing, 
or  his  acts,  from  bringing  replevin 
on  the  ground  of  the  property  being 
his.     The  writing  would  be  a  strong 


78 


Evidence. 


[Chap.  2. 


Parol  evidence  is  admissible  to  show  that  an  illiterate  person 
signed  a  release  without  knowledge  of  its  contents  or  intending  to 
sign  such  an  instrument."  In  a  proceeding  in  equity,  it  is  open  to 
a  party  to  show  that  a  certain  receipt  he  signed  was  signed  by  mis- 
take induced  by  the  fraud  of  the  other  party. ^^ 

A  railroad  ticket  is  more  in  the  nature  of  a  receipt  than  a  con- 
tract, and  parol  evidence  is  competent  to  show  additional  condi- 
tions not  expressed  on  the  face  of  the  ticket. ^^  Thus,  a  railroad 
company  issuing  a  ticket  may  show  by  parol  that  so  far  as  the  ticket 
covered  connecting  lines  it  acted  only  as  agent  and  assumed  no 
responsibility,  although  the  ticket  contains  no  notice  to  this  effect.^'* 
A  statement  by  a  ticket  agent  in  selling  a  ticket  that  the  passenger 
may  not  be  able  to  travel  on  a  certain  train  does  not  curtail  his 
rights  as  expressed  in  the  ticket,^^  but  declarations  of  a  ticket  agent 


fact  against  his  title,  but  not  con- 
clusive. Johns  V.  Church,  12  Pick. 
(Mass.)  557.  The  court  liken  the 
case  to  a  man's  taking  a  lease,  for  a 
year,  of  his  own  lands.  During  the 
year  he  shall  not  question  the  title 
of  his  landlord,  but  after  that  he 
may.  It  clearly  appeared,  however, 
in  "this  case,  that  the  sheriff  had  no- 
tice of  the  defendant's  claim,  both 
when  the  receipt  was  given  and  when 
the  property  was  delivered  in  pursu- 
ance of  the  receipt.  Had  there  been 
no  notice  of  the  kind  before  suit 
brought,  it  may  be  questionable 
Avhether  the  action  could  have  been 
maintained.  It  seems  that,  in  cases 
like  that,  even  if  the  property  has  not 
been  delivered,  and  an  action  is 
brought  on  the  receipt,  the  defend- 
ant may  show  his  title,  and  that  the 
sheriflT  had  notice  of  it  at  the  time  of 
taking  the  receipt,  in  mitigation  of 
damages,  but  not  otherwise.  Burs- 
ley  v.  Hamilton,  15  Pick.  (Mass.)  40. 
A  receipt  for  the  purchase-money 
of  a  slave,  containing  a  warranty  of 
soundness,  and  accompanied  by  an 
order  on  a  third  person  for  the  ue- 
livery  of  the  slave,  was  held  to  exclude 
parol  evidence  for  the  purpose  of 
showing  the  intention  of  the  parties 
to  be,  that  the  title  to  the  slave  was 
not  to  vest  in  the  purchaser  till  the 
slave  was  actually  delivered.  Frank- 
lin V.  Long,  7  G.  &  J.   (Md.)  407. 


A  creditor,  on  a  compromise  with 
his  debtor,  took  the  note  of  A.  for 
an  amount  less  than  his  debt,  by  way 
of  payment,  and  indorsed  on  a  note 
he  held  against  the  debtor  an  ac- 
knowledgment of  the  receipt  of  A.'s 
note  as  a  compromise  for  the  full 
paj'ment  of  the  debtor's  note.  It  was 
held  that,  in  an  action  subsequently 
brought  by  the  creditor  against  the 
debtor,  the  former  could  not  give 
parol  evidence  that,  in  addition  to 
A.'s  note,  a  further  sum  was  agreed 
to  be  paid  him  bv  the  debtor.  Kel- 
logg V.  Richards,  14  Wend.  (N.  Y.) 
116. 

Where  a  receipt  was  of  a  sum  for 
safe  keeping,  it  was  held  that  it 
could  not  be  contradicted  by  evidence 
that  the  money  was  jyaid.  Tisloe  v. 
Graefer,  1  Blackf.  (Ind.)'  353.  Nor 
can  the  legal  effect  of  special  receipts 
in  the  nature  of  a  contract  be  varied 
bv  parol.  Stone  v.  Vance,  6  Hamm. 
(Ohio)   246. 

'"  Lord  V.  American  Mutual  Acci- 
dent Association,  89  Wis.  19,  61  N. 
W.  293,  46  Am.  St.  Rep.  815. 

'*  Butler  V.  State,  81  Miss.  734,  33 
So.  847. 

"  Ames  V.  Southern  Pac.  Co.,  141 
Cal.  728,  75  Pac.  310. 

^^  Pennsvlvania  Co.  v.  Loftis 
(Ohio.  1955),  74  N.  E.  179. 

"  Illinois  Central  R.  Co.  v.  Harris, 
81  Miss.  208,  32  So.  309. 


Sec  23.]  Parol  Evidence  as  to  Weitings.*  Y9 

as  to  stop-over  privilege*  are  binding  where  the  ticket  purchased 
did  not  cover  the  points  inquired  about. '^ 

As  between  the  conductor  and  the  passenger,  the  ticket  is  the 
conclusive  evidence  of  the  passenger's  right  to  travel,  and  in  an. 
action  for  wrongful  expulsion  parol  evidence  to  vary  it  is  inad- 
missible.^^ 

Sec.  23.  Surrounding  Circumstances. 

The  rule  that  parol  evidence  is  admissihle  to  explain  and  apply 
a  ivriting,  where  it  does  not  contradict  or  vary  it,  is  universal  in 
its  application,  and  is  in  accordance  with  another  rule  which  is 
well  recognized,  that  a  imnting  may  he  read  in  the  light  of  sur- 
rounding circumstances,  in  order  that  the  true  intent  and  meaning 
of  the  parties  may  he  arrived  at,^*  and  that  independent  and  collat- 
eral facts,  about  w^hich  the  contract  is  silent,  may  be  shown  by 
parol.^^ 

The  surrounding  circumstances.,  and  subsequent  conduct  and 
acts  of  the  parties,  are  material  and  competent  to  show  the  inter- 
pretation which  they  put  on  an  agreement,  and  what  conditions 
they  have  waived.^*' 

"  Illinois  Cent.   R.   Co.   v.    Harper,  of  the  parties  as  is  other  conduct  of 

83  Miss.  560,  35  So.  764.  the  parties  bearing  on  the   contract. 

^^  Rolfs  V.  Atchison,  T.  &  S.  F.  Ry.  The  preliminary  correspondence  of  the 

Co.,  66  Kan.  272,  71  Pac.  526.  parties    and    the    knowledge    of    one 

-*  In  Robinson  v.  Barnett,  18  Fla.  party  of  the  business  of  the  other 
602,  at  the  maturity  of  a  note  the  niay  be  admissible  as  bearing  on  the 
holder  demanded  payment  of  the  ap-  intention  of  the  parties  in  making 
parent  indorser.  but  he  refused,  alleg-  the  contract.  Excelsior  Wrapper  Co. 
ing  that  the  indorsement  was  forged,  v.  Messinger,  116  Wis.  549.  93  N.  W. 
but  to  save  the  expense  of  protest,  he  459:  Acker  v.  Bender,  33  Ala.  230; 
wrote  over  the  indorsement  the  words  S.  P.  Cross  v.  Pearson,  17  Ind.  612; 
"protest  waived."  and  in  an  action  Emery  v.  Webster,  42  Me.  204; 
against  him  evidence  of  these  facts  Grant  v.  Lathrop,  23  N.  H.  67 ;  Hal- 
was  held  admissible.  Emery  v.  Web-  sted  v.  Meeker,  15  N.  J.  L.  136;  Hal- 
ster,  42  Me.  204;  Knight  v.  N.  E.  deman  v.  Chambers,  19  Tex.  1;  Con- 
Worsted  Company,  2  Cush.  (Mass.)  ner  v.  Carpenter,  28  Vt.  237;  Rat- 
271;  Barnabee  v.  Suaer,  18  La.  An.  clifi'e  v.  Allison,  3  Rand.  (Va.)  537; 
148;  Pierson  v.  Atlantic  Bank,  77  Sigerson  v.  dishing,  14  Wis.  527; 
N.  Y.  304:  Spencer  v.  Babcock,  22  Carmony  v.  Hoober,  5  Penn.  St.  305. 
Barb.  (N.  Y. )  326;  Reader  v.  Helms,  Evidence  in  explanation  of  an  au- 
57  Ala.  440.  thentic    act    is    admissible    where    it 

-^  Keogh  V.  McNitt,  6  Minn.  513.  does   not   contradict,   vary,   alter,   en- 

-"  Claims  made   by   one   party  to  a  large,  or  restrict  the   act.     Barnabee 

contract   in   repeated    letters   not    de-  v.    Suaer,    18    La.    An.    148.       And,, 

nied  by  the  other  party  till  after  part  though   not   admissible   to  add   to  or 

performance  of  the  contract,  are  ad-  vary  the  terms  of  a  written  contract,, 

missible  to  explain  the  understanding  it   is   admissible   to   prove    facts   and 


80 


Evidence. 


[Cliap.  2. 


It  is  allowable  also,  in  many  instances,  to  show  in  evidence  pre- 
existing and  contemporaneous  facts  and  circumstances  attending 
the  negotiations  of  the  parties  in  making  the  contract,  as  such 
facts  often  throw  light  uj>on  the  disputed  contract  itself.^^  So  the 
surrounding  circumstances  are  admissible  on  the  question  whetlier 


circumstances  as  to  the  relations  of 
the  parties,  and  the  nature,  quality, 
and  condition  of  the  property  ^^hich 
is  the  subject  of  the  contract :  and 
also  the  acts  of  the  parties  at  and 
subsequent  thereto,  for  the  purpose 
of  showing  their  understanding  of  its 
terms.  Knight  v.  New  England 
Worsted  Co.,  2  Cush.  (Mass.)  271. 
Thus,  where  upon  a  partition  between 
co-heirs,  a  way  is  assigned  to  one, 
and  upon  the  evidence  it  is  uncertain 
which  of  two  routes  was  intended,  evi- 
dence is  admissible  of  any  circum- 
stances or  acts  of  the  parties  or  of 
the  commissioners  indicating  such  in- 
tention. French  v.  Hayes,  43  N.  H. 
30.  Such  extrinsic  facts,  existing  at 
the  time  a  written  contract  is  made, 
are  admissible  to  aid  in  the  interpre- 
tation of  the  instrument,  although 
not  to  contradict  it.  Phelps  v.  Bost- 
wick,  22  Barb.  (N.  Y.)  314;  Spencer 
V.  Babcock,  id.  326.  And  in  constru- 
ing a  written  instrument,  the  situa- 
tion of  the  parties  and  the  nature 
and  object  of  their  transactions  may 
be  looked  at;  but  the  court  cannot 
give  effect  to  any  intention  which  is 
not  expressed  by  the  language  of  the 
instrianent  ivhen  looked  at  in  the 
light  of  facts  that  are  2)ropei-ly  before 
the  court.  Farmers'  &c.,  Co.  v.  Com- 
mercial Bank,  Wis.  424. 

"  Pierson  v.  Atlantic  Bank,  77  N. 
Y.  304;  Barnebe  v.  Suaer,  18  La.  An. 
148;    Reader  v.   Helms,   57    Ala.   440. 

A  contract  evidenced  by  letters  to 
furnish  to  a  railroad  company  all  the 
ties  it  might  need  during  a  certain 
year  may  be  explained  by  evidence 
of  the  surrounding  circumstances  to 
refer  to  ties  it  might  need  in  con- 
structing certain  new  lines  only. 
Laclede  Const.  Co.  v.  T.  J.  Moss  Tie 
Co.,  185  Mo.  25,  84  S.  W.  76.  Parol 
evidence  is  admissible  to  show  what 
incumbrances  were  intended  to  be  in- 
cluded within  a  covenant  "  against  all 
incumbrances."     Gill  v.  Ferrin,  71  N. 


H.  421,  52  A.  558,  where  the  grantee 
claimed  that  the  covenant  covered  a 
mortgage  which  the  grantee  had 
agreed  to  assume  and  pay.  The 
words  "  tenement  house "  in  a  deed 
executed  in  1873  may  be  explained  by 
testimony  that  an  apartment  house 
was  not  known  at  the  time  and  was 
not  intended  to  be  included  in  the 
phrase.  Kitching  v.  Brown,  180  N. 
Y.  414,  73  N.  E.  241.  Parol  evidence 
is  admissible  to  show  that  the  two 
grantees  in  a  deed  were  husband  and 
wife,  and  therefore  took  an  estate  by 
entireties.  McLaughlin  v.  Rice.  185 
Mass.  212,  70  N.  E.  R.  52.  Where  an 
insurance  policy  is  silent  as  to  the 
method  or  tables  by  which  the  insur- 
ance is  to  be  calculated  parol  evi- 
dence is  competent  to  show  what 
tables  were  then  in  use  by  the  com- 
pany for  it  nuist  be  presumed  that 
the  parties  contracted  with  reference 
to  the  tables  adopted  by  the  company 
and  then  in  use  by  it.  After  the 
policy  was  issued  the  comnany  wa3 
not  at  liberty  to  adopt  another  table 
less  favorable  to  the  assured.  Provi- 
dence Savings  Life  Assurance  So- 
ciety of  New  York  v.  Bailey  (Ky., 
1901),    80,    S.    W.   452. 

In  Coml.  Bank  of  Albany  v.  Clark, 
28  Vt.  325.  the  defendant  was  sued  as 
indorser  of  a  bill  of  exchange.  The 
notice  of  its  "dishonor  was  proved  by 
his  written  acknowledgment  that  he 
did  receive  due  and  legal  notice  of  the 
protest  and  non-payment  of  the  bill. 
The  question  in  the  case  was, 
whether  this  written  acknowledgment 
was  conclusive,  or  whether  he  could 
show  that  in  fact  no  such  notice  of 
protest  was  ever  given,  he  having 
signed  the  admission  iindcr  a  misap- 
prehension of  the  facts.  The  court 
held  that  there  was  nothing  in  the 
case  to  render  the  testimony  inadmis- 
sible. See,  also,  Sigerson  v.  Cushing, 
14  Wis.  527;  Lyon  v.  Kidder,  48  Vt. 
42. 


Sec.  24.]  Parol  Evidence  as  to  Writings.  81 

a  certain  contract  is  illegal  as  in  restraint  of  trade.^^  Mr.  Wigram^ 
says,  "  Every  claimant  under  a  will  has  a  right  to  require  that  a 
court  of  construction  in  the  execution  of  its  office  shall,  by  means 
of  extrinsic  evidence,  place  itself  in  the  situation  of  the  testator, 
the  meaning  of  whose  language  it  is  called  upon  to  declare ;"  and 
this  rule  applies  with  equal  force  to  all  classes  of  instruments,  as 
all  writings  are  presumed  tacitly  to  refer  to  the  circumstances  ex- 
isting when  they  were  made,^°  and  it  is  upon  this  principle  that 
evidence  of  customs  and  usages  is  admitted  in  aid  of  the  interpreta- 
tion of  instruments,  as  "  the  law  is  not  so  unreasonable  as  to  deny 
to  the  reader  of  any  instrument  the  same  light  which  the  ivriter 
enjoyed,"  bearing  in  mind,  however,  that  a  writing  cannot  be 
added  to  or  cut  down  by  the  testimony  of  witnesses. 

Sec.  24.  To  Prove  Collateral  Matters. 

Parol  evidence  may  be  said  to  be  primary  whei-e  the  writing  is 
not  admissible  to  prove  the  facts  to  establish  which  tlie  oral  proof 
is  offered,^  or  where  it  is  offered  to  establish  a  matter  collateral  to 
or  distinct  from  the  wTiting,^  as,  the  consideration,  or  failure  of  the 
consideration,  of  a  guaranty,^  note,*  or  other  contract^  or  obliga- 
tion,^ where  the  consideration  is  not  specifically  stated  in  the  in- 
strument.^ Also  where  the  ownership  of  land  is  a  collateral  mat- 
ter parol  evidence  is  sufficient  to  prove  it.^  So,  in  a  suit  by  a  trav- 
eller on  a  railroad  against  the  company  for  personal  injuries,  evi- 
dence that  he  had  a  ticket  or  transfer  is  sufficient  to  prove  himself 
a  passenger  without  producing  the  original  ticket,  where  the  con- 
tents of  his  ticket  is  not  in  issue,  but  only  the  question  whether  he 
had  a  ticket.^    Such  evidence  is  admissible  to  identify  the  subject- 

»« Detroit  Salt  Co.  v.  National  Salt  "  Andrews  v.  Andrews,  12  Ind.  348 ; 

Co.,  134  Mich.   103.  96  N.  W.  1.  Groesbeck    v.    Seelev.    13    Mich.    329; 

2»Wigram  on  Extr.  Ev.  59,  138.  Estabrook  v.  Smith.  6  Gray    (Mass.) 

'"Wigram    on    Extr.    Ev.    57.      As  572;      Harwood   v.   Harwood,   22   Vt. 

to  wills,  see  Bradbury  v.  Jackson,  97  507. 

Me.  449,  54  A.  1068,  1071.  ■'Wood  v.  Beach,  7  Vt.  522;  Merle 

'Sparks  v.  Rawls,   17  Ala.  211.  v.   Matthews,  26   Cal.   455;   White  v. 

'Shiel  V.  Starke,   14  Ga.  429.  Weeks,   1   Penn.   486;   Myer  v.  Casey, 

» Nichols  V.   Bell,   1    Jones    (N.   C.)  57  Miss.  615;  Cornell  v.  Markham.  19 

li.  32.  Hun    (N.   Y.),   275;  D&  Lavalette  v. 

*Long  V.  Davis,  18  Ala.  801;  Beck-  Wendt,  75  N.  Y.  579. 

els,    V.    Cunningham,    14    Miss.    358;  *  Garrison   v.   Glass;    139   Ala.    512, 

Smith   V.   Crooks,    18    Ga.    440;   Her-  36  So.   725. 

rick  V.  Bean,  20  Me.  51.  » Elgin  J.  &  E.  Rv.  Co.  v.   Thomaa 

0  Cowan  V.  Cooper,  41  Ala.  187.  (111.,  1905),  74  N.  E,  109;     Chicago 

6 


82  Evidence.  [Chap.  2. 

matter  of  the  contract  or  deed  or  other  instrument,  and  apply  it 
thereto/^  where  the  instrument  itself  does  not  sufficiently  show  to 
■which  of  two  or  more  things  it  applies. 

Parol  evidence  is  also  admissible  to  prove  matters  collateral 
to  the  agreement  which  are  not  repugnant  therewith. 
Thus,  while  it  is  a  well-settled  rule  that  parol  evidence 
cannot  be  admitted  to  contradict  or  vary  the  terms  of 
a  written  instrument,  and  that  a  conveyance  cannot  be 
shown  by  parol  to  be  to  another  use  or  intent  than  that  expressed 
in  it,  yet  parol  evidence  may  be  admitted  to  p^ove  a  collateral 
agreement  with  stipulations  in  a  deed,  and  in-no  respect  repugnant 
to  it.  So,  an  oral  agreement  whereby  the  owner  of  land  agreed  to 
construct  streets  in  consideration  the  buyer  would  buy  the  land 
and  build  a  house  on  it,  may  be  proved  as  collateral  to  the  wa-itten 
agi-eement  for  the  sale  of  the  land.^^  It  is  competent  to  show  by 
parol  that  a  grantee  in  a  deed  agreed  to  pay  a  mortgage  on  the 
land.^^  A  mortgage  or  pledge  of  certain  warehouse  receipts  to 
secure  a  note  may  be  extended  by  evidence  that  it  was  orally 
agTeed  that  the  surplus  proceeds  of  the  receipts  should  be  applied 
to  other  notes  owed  by  the  pledgor  to  the  pledgee. ^^  A  court  of 
equity,  in  a  suit  to  restrain  the  enforcement  of  a  mortgage  note, 
may  admit  evidence  to  show-  a  collateral  agreement  that  the  note 
was  not  to  be  enforced  so  long  as  the  mortgagor  bought'  of  the 
mortgagee.^* 

An  oral  agreement  made  before  the  execution  of  a  lease  that  if, 
during  the  term,  the  lessee  should  take  a  lease  of  another  store  of 
the  lessor  and  should  vacate  the  store  first  leased  the  lessor  would 
thereupon  surrender  all  rights  under  the  lease  is  ineffective  as  con- 
tradicting the  lease.^^  AVhere  a  party  contracts  to  sell  all  his  stock 
in  a  corporation,  said  holdings  "  amounting  to  three-fifths  of  the 

City  Railway  Co  v.  Carroll,  206  111.  "  Drew  v.  Wis^vall,   183  Mass.  554, 

318    68  N    E    1087.  67  N.  E.  R.  666.     See,  also,  Durkin  v. 

"Norris  v.'Shafford,  127  Mass.  85;  Cobleigh,    156    Mass.    108,    30    N.    E, 

Chicago   Dock,  &c..  Co.    v.    Kinzie.    93  474,  32  Am.  St.  Rep.  436. 

Ill    415:   Hannah   v.    Shirley,    7   Ore-  "  Mowry  v.  Mowiy    (Mich.,   1904), 

gon,   115:   Ames  v.   St.  Paul,  &c.,  R.  100  N.  W.  388. 

R    Co.,   12   Minn.   412;   Earnhardt  v.  ^^  Lewis  v.   First  Nat.   Bank    (Ore., 

Riddle,     23     Penn.     St.     93;      Hilde-  1904),  78  Pac.  990. 

brand  v.  Tagle,  20  Ohio,  147;   Gould  "O'Brien    v.    Paterson    Brewing   & 

V.  Lee,  55  Penn.  St.  99;  Robinson  v.  Malting  Co.   (N.  J.  Ch.,  1905),  61  A. 

White,    42    Me.    209;      McGregor    v.  437. 

Brown,  5  Pick.    (Mass.)    170;   Hardy  "Taylor  v.  Coding,  182  Mass.  231, 

V.  Mattliews,  38  Mo.   121.  65  N.  E.  R.  64. 


Sec.  24.] 


Parol  Evidence  as  to  Writings. 


83 


entire  capital  stock,"  parol  evidence  is  inadmissible  to  show  that  he 
was  to  sell  only  such  stock  a*s  he  owned.^^ 

And  generally  it  may  be  said  that  parol  proof  of  any  collateral 
parol  agreement  may  he  given,  which  does  not  interfere  with  tlie 
terms  of  the  written  contract,  although  it  may  relate  to  the  same 


"Dady  v.  O'Rourke,  172  N.  Y.  447, 
65  N.  E.  R.  273. 

As  where  A.,  B.  and  C.  were  part- 
ners, and  A.,  without  consulting  his 
copartners,  acting  as  the  agent  of  D., 
his  brother,  fraudulently  applied 
some  of  the  funds  of  the  partnership 
to  the  use  of  D.,  and  D.,  by  his  deed, 
reciting  that  A.  was  largely  indebted 
to  B.  and  C,  w-hich  indebtedness  he 
had  agreed  to  discharge,  etc., — it  was 
held,  that  the  amount  of  this  indebt- 
edness, which  was  not  stated,  might 
be  shown  by  parol  evidence.  Pomery 
V.  Manin,  2  Paine    (U.   S.),  476. 

So,  too,  where  an  agreement  is  en- 
tered into  between  two  or  more  sure- 
ties or  indorsers  on  a  note  that  they 
will  divide  the  loss  between  them,  in 
an  action  by  the  one  who  has  paid  the 
note  against  the  other  upon  such 
agreement,  parol  evidence  is  admis- 
sible to  prove  it.  Phillips  v.  Preston, 
5  How.  (U.  S.)  278.  In  Indiana 
(Harvey  v.  Millier.  67  Ind.  90)  it  has 
been  held  that  the  grantor  of  land, 
who  has  sold  it  by  warranty  deed, 
may,  although  the  grantee  entered 
into  possession  at  once,  and  although 
the  deed  contained  no  mention 
thereof,  show  a  parol  reservation  of 
a  growing  crop  (Overruling  Chapman 
V.  Long,  10  Ind.  465)  ;  and  in  Penn- 
sylvania (Heysham  v.  Dettre,  89 
Penn.  St.  506)  it  has  been  held  that 
parol  evidence  is  admissible  to  show 
that  a  heater  and  gas  fixture  were  to 
pass  to  the  purchaser  of  a  house, 
under  a  written  agreement  in  which 
no  mention  was  made  of  such  articles. 
So,  too,  it  has  been  held  that,  as 
between  an  indorser  and  his  immedi- 
ate indorsee,  oral  evidence  is  compe- 
tent to  show  a  waiver  of  demand  and 
notice  of  non-payment  at  the  time  of 
indorsing  in  blank.  Dve  v.  Scott,  35 
Ohio  St.  194;  35  Am.  Rep.  604.  See 
§  37,  jiost.  See,  also,  Davis  v. 
Morgan,  64  N.  C.  540;  Menden- 
hall  V.  Davis,  72  id.  150,  in  which 
it  was  held  that  parol  evidence  is  ad- 


missible to  annex  qualifications,  or  a 
special  contract  even,  as  between  the 
immediate  parties  under  a  blank  in- 
dorsement. But  such  evidence  is  not 
admissible  as  against  third  persons 
into  whose  hands  the  note  may  pass 
in  due  course  of  business,  because 
they  have  a  right  to  rely  upon  the 
obligation  which  the  law  implies 
from  a  blank  indorsement,  and  are 
not  bound  by  any  private  contract  or 
arrangement  made  between  other 
parties  to  the  note,  which  does  not 
appear  thereon.  Dye  v.  Scott,  ante. 
This  doctrine  is  not,  apparently,  in 
accordance  with  the  general  drift  of 
the  authorities  (BartleiL,  v.  Lee,  33 
Ga.  491;  Bank  of  U.  S.  v.  Dunn,  6 
Pet.  [U.  S.]  51;  Dale  v.  Gear,  38 
Conn.  15),  but  it  seems  to  us  that 
neither  its  justice  or  soundness  can 
be  questioned,  as  the  only  efTect  of 
the  evidence  is  to  show  a  waiver  by 
one  party  of  a  legal  right,  and  not  an 
addition  to,  or  alteration  of,  the  con- 
tract itself;  and  that  a  waiver  of  a 
right  may  be  proved  by  parol, 
whether  arising  under  a  contract, 
deed,  or  by  operation  of  law,  has  been 
repeatedly  held  by  our  courts.  Ruf- 
finsberger  v.  CalHson,  28  Penn.  St. 
426;  \Mlley  v.  Hall,  8  Iowa,  62; 
Wood  V.  Perry,  1  Barb.  (N.  Y.)  114; 
Bryan  v.  Hunt,  4  Sneed  (Tenn. ), 
543;  Chiles  v.  Jones,  8  B.  Mon.  (Ky.) 
51 ;  Parker  v.  Syracuse,  31  N.  Y. 
376;  Leathe  v.  'Bullard,  8  Gray 
(Mass.),  545;  IMedomok  Bank  v. 
Curtis,  24  Me.  36.  But,  of  course, 
such  a  waiver  is  only  eflfectual,  so  far 
as  a  negotiable  instrument  is  con- 
cerned, between  the  immediate  par- 
ties to  the  agreement.  Nor  is  evi- 
dence of  any  collateral  agreement  ad- 
missible even  between  the  parties, 
which  in  any  manner  varies  or 
changes  the  terms  of  the  contract. 
Thus,  evidence  is  not  admissible  to 
show  that  the  payee  of  a  not*,  at  the 
time  of  transferring  it  by  indorse- 
ment,   orally    agreed    to    assume    the 


84 


Evidence. 


[Chap.  2. 


subject-matter}'^  Wliere  the  parol  agreement  is  merely  collateral 
to  the  principal  agreement,  and  independent  of  it,  it  may  be  made 
the  oTonnd  of  an  action  for  recoupment  or  abatement  of  damages, 
and  may  be  established  by  parol. 


Sec.  25.  To  show  that  Writing  never  legally  existed.    (Frauds 
Illegality,  Escrow,  etc.) 

The  extrinsic  evidence  thus  far  considered  has  been  directed  in 
various  ways  toward  the  variation  or  explanation  of  an  acknowl- 
edged writing  and  is  not  to  be  confused  with  evidence  discussed  in 
this  section  introduced  to  show  that  the  writing  never  legally  ex- 
isted on  account  of  fraud,  illegality  or  other  reason,  which  latter 
species  of  evidence  is  always  admissible  if  competent.  The  rule 
excluding  proof  to  explain,  vary  or  control  a  written  contract  does 
not  apply,  even  in  a  court  of  law,  where  it  is  claimed  that  a  ma- 
terial part  of  it  has  been  inserted  by  the  fraud  of  one  of  the 
parties,^  or  that  a  material  part  of  the  contract  was  omitted  by  the 


payment  of  it  absolutely  and  uncon- 
ditionally (Rodney  v.  Wilson.  67  Mo. 
123.  29  Am.  Rep."  499;  Doolittle  v. 
Ferry,  20  Kan.  230,  27  Am.  Rep. 
166)',  nor  that  It  was  agreed  between 
them  that  the  indorsers  should  not 
V.   Shields,   81   N.   C. 


be  liable.     Hill 
250. 

"  Ruggles  V 
526 ;  Joannes 
(Mass.),  245. 

Thus,     in     a 
(Carr  v.  Dooley 
the  time  of   the 
purchase  of  land 


Swanwick,    6 
V.     Mudge,    6 


Minn. 
Allen 


Massachusetts  case 
119  Mass.  294),  at 
negotiation  for  the 
,  a  sewer  was  in  pro- 
cess of  construction  in  the  street  on 
which  the  land  abutted.  The  pur- 
chaser called  the  owner's  attention  to 
it,  and  asked  him  who  was  to  pay  for 
the  sewer,  to  which  the  owner  replied 
that  he  would,  and  that  the  other 
party  should  not  be  called  upon  to 
pay  a  cent  for  it.  A  deed  of  the  land 
was  subsequently  given,  with  the 
usual  covenants  of  warranty,  but  no 
mention  was  made  of  the  sewer. 
The  purchaser  afterwards  paid  an  as- 
sessment for  the  construction  of  the 
sewer,  and  in  an  action  by  him 
against  his  grantor  to  recover  the 
amount  paid,  it  was  held  that  evi- 
dence of   the   conversation   and  exist- 


ing circumstances  was  sufficient  to 
prove  the  promise,  and  that  it  was  not 
open  to  the  objection  that  it  varied 
or  enlarged  the  written  instriunent. 
See.  also,  McCormick  v.  Cheevers, 
124  Mass.  262. 

'  Baltimore,  &c..  Steamboat  Co.  v. 
Brown.  54  Penn.  St.  77 ;  Townsend  v. 
Cowler,  31  Ala.  428;  Holbrook  v. 
Burt,  22  Pick.  (Mass.)  546;  Hamil- 
ton V.  Conger,  28  Ga.  276;  Stark  v. 
Littlepage,  4  Rand.  (Va.)  368:  Gat- 
ling  V.  Newell,  9  Ind.  572;  Hunter 
V.  Bilgen,  30  111.  228;  Farrell  v. 
Bean.  10  Md.  217;  Sartford  v. 
Handy.  23  Wend.  (N.  Y.)  260;  Dav?s 
V.  Stern,  15  La.  An.  177;  Hunt  v. 
Carr,  3  Iowa,  581;  Selden  v.  Myers, 
20  How.  (U.  S.)  506:  Van  Buskirk 
V.  Dav.  22  111.  260:  Harrell  v.  Hill, 
19  Ark.  102;  Mallory  v.  Leach.  36 
Vt.  156.  But  it  is  not  proper  to  show 
that  the  parties  agreed  that  the 
writing  should  be  a  sham.  Connor  v. 
Carpenter.  28  Vt.  237.  It  is  proper 
to  show  that  the  party's  signature 
was  procured  bv  fraud.  Lull  v.  Cass, 
43  N.  H.  62;  Christ  v.  Diffenbach,  1 
S.  &  P.  (Penn.)  464;  Preatice  v. 
Russ,  16  Me.  30.  This  rule  applies 
as  well  to  deeds  or  other  instruments 
under  seal  as  to  simple  contracts,  and 


Sec.  25.] 


Parol  Evidence  as  to  Wkitings. 


85 


fraud  of  one  of  the  parties ;'  or  tliat  tlie  writing  lias  been  altered 
in  a  material  respect.^ 

The  object  is  to  show  that  no  such  contract  as  is  sued  upon  was 
ever  entered  into  by  the  party  sued.*  If  a  material  part  has  been 
inserted  or  omitted  by  the  fraud  of  one  of  the  parties,  this  fur- 
nishes an  exception  to  the  rule,  and  parol  proof  is  admissible  to 
establish  the  fact.^    The  effect  of  this  evidence  is  to  show  that  the 


a  deed  may  be  avoided  by  showing 
that  it  was  misread  or  its  purport 
falsely  declared  to  the  grantor  at  the 
time  of  its  execution.     Doe  v.  Farlee, 

22  N.  J.  L.  289;  Anthony  v.  Wilson, 
14  Pick.  (Mass.)  303;'  Farmers', 
&c..  Bank  v.  Whinfield,  24  Wend.  (N. 
Y.)  419;  Chestnut  Hill,  &c.,  Co.  v. 
Chas,  14  Conn.  123;  or  according  to 
some  of  the  cases  that  its  execution 
was  obtained  by  fraudulent  misrep- 
resentations as  to  the  consideration 
of  the  instrument.  Bliss  v.  Thomp- 
son, 4  Mass.  492 ;  Somer  v.  Skinner, 
16  id.  348;  Hazard  v.  Erwin,  18 
Pick.    (Mass.)    95;    Hoitt  v.  Halcomb, 

23  N.  H.  535;  Chew  v.  Molfatt,  6 
Munf.  (Va.)  120;  Leonard  v.  Bates 
1  Blackf.  (Ind.)  172;  but  contra 
see  Vrooman  v.  Phelps,  2  John.  (N 
Y.)  177;  Taylor  v.  King,  6  Munf 
(Va. )  358;  Donaldson  v.  Barton,  4 
D.  &  B.  (N.  C.)  435;  Rogerg  v.  Colt 
1  N.  J.  L.  714. 

^Chitwood  V.  Brittain,  2  N.  J.  Eq 
438;  Phyfe  v.  W^ardwell,  2  Edw.  Ch 
(N.  Y.)  47;  Watkins  v.  Stockett,  6 
H.  &  S.  (Md.)  435;  Blanchard  v 
Moore,  4  J.  J.  Mar.  (Ky.)  471;  El 
liott  y.  Connell,  13  Miss.  91;  Ander 
son  y.  Bacon,  1  A.  K.  Mar.   (Ky.)   48 

^  Buck  V.  Appleton,  14  Me.  284. 

"  It  is  not  every  representation 
untrue  in  itself,  made  in  the  course 
of  negotiations  leading  to  a  con 
tract,  which  will  justify  or  au 
thorize  a  rescission  of  fhe  contract 
As  a  general  rule,  it  has  long  been 
the  doctrine  prevailing  in  this  court 
that  the  misrepresentation  of  ma- 
terial facts,  on  which  the  party  act- 
ing relies  and  has  the  right  to  rely, 
whether  made  wilfully  and  intention- 
ally or  innocently  from  ignorance, 
inadvertance,  or  mistake,  will  avoid  a 
contract  it  may  have  induced.  But 
these  and  all  our  decisions  hold  that, 
in  the  absence  of  a  relation  of  trust 


and  confidence,  or  of  some  other  pe- 
culiar fact  or  circumstance,  a  mis- 
representation of  matter  of  law,  or 
of  matter  of  judgment  equally  open 
to  the  observation  or  inquiries  of 
both  parties,  or  of  mere  opinion,  will 
not  vitiate  a  contract."  Rutter  & 
Hendrix  v.  Hanover  Fire  Ins.  Co.,  138 
Ala.  202,  35  So.  33,  citing  Georgia 
Home  Ins.  Co.  v.  Warten,  113  Ga. 
479,   22   So.   288. 

If  a  person  who  cannot  read  or 
write,  or  who  cannot  speak  dr  read, 
the  language  in  which  a  note  or 
other  obligation  is  written,  is  in- 
duced to  place  his  signature  thereto 
upon  the  assurance  by  the  other 
party  that  it  is  an  instrument  of  a 
different  character  from  what  it  in 
fact  is,  or  that  it  contains  provi- 
sions of  a  different  character  from 
what  it  in  fact  does  contain,  parol 
evidence  is  admissible  to  show  the 
facts,  not  to  varj'  or  control  the 
writing,  but  to  show  that  no  such 
contract  was  in  fact  entered  into, 
and  such  evidence  is  no  more  ob- 
noxious to  the  general  rule  excluding 
parol  evidence  than  is  evidence  to 
show  that  a  party's  signature  to  the 
instrument  is  a  forgery. 

^Van  Buskirk  v.  Day,  22  111.  260; 
Christ  V.  Diffenbach,"  1  S.  &  R. 
(Penn.)  464;  Chamnion  v.  White,  5 
Cow.    (X.  Y.)    508. 

MVaddell  v.  Glaseell,  18  Ala.  561; 
Bottomley  v.  United  IStates,  1  Story 
(U.  S.  C.  C),  135;  Townsend  v.  Cow- 
ler,  31  Ala.  428;  Lunday  v.  Thomas, 
26  Ga.  538:  Pierce  v.  Wilson,  34 
Ala.  590;  Hamilton  v.  Congers,  28 
Ga.  276;  Catling  v.  Newell,  9  Ind. 
572;  Stannard  v.  McCarty,  1  Morr. 
(Iowa)  124;  Hunt  v.  Carr,  3  Iowa, 
581;  Akin  v  Drummond,  2  La.  An. 
92 ;  Morris  v.  Terrenoire,  id.  458 ; 
Williams  v.  Vane,  id.  908;  Radial  v. 
Rachal,   4   id.   500;  Gayoso   v.   Dela- 


86 


Evidence. 


[Chap.  2. 


writing  is  void  or  that  it  never  had  any  legal  existence.®  Thus, 
parol  evidence  is  admissible  to  show  that  a  contract  was  procured 
by  fraud.'' 

So,  a  party  may  show  that  he  was  induced  to  execute  a  written 
agreement  by  fraudulent  representations  affecting  the  considera- 
tion,^ and  evidence  is  admissible  to  show  that  a  release  was  ob- 
tained by  fraud,  and  on  this  question  the  circumstances  of  the 
parties  are  admissible  in  evidence.^  In  an  action  to  recover  money 
paid  on  account  of  a  written  contract  the  plaintiff  may  introduce 
evidence  that  he  was  induced  to  enter  into  the  contract  by  misrepre- 
sentations of  the  defendant.^*'  Evidence  of  a  contemporaneous  oral 
agreement  is  admissible  only  on  proof  that  it  was  omitted  from  the 
written  contract  by  fraud,  accident  or  mistake.^^ 

The  same  rule  prevails  as  to  illegality,  and  parol  evidence  is  ad- 
missible to  show  that  a  written  contract  was  entered  into  for  an 
illegal  object  forbidden  by  statute,  by  common  law,  or  by  the  gen- 
eral policy  of  the  law.^^  Parol  testimony  is  always  permissible  to 
show  that  a  paper  is  but  a  cover  for  usury,  penalty,  forfeiture  or 
other  illegal  advantage  to  one  of  the  parties.  So,  a  contract  pro- 
viding for  payments  of  certain  sums  designated  as  rental  on  the 
completion  of  which  payments  a  deed  was  to  be  given  may  be 
shown  to  be  really  a  contract  for  sale  with  a  penalty. ^^  So,  a  con- 
tract of  a  customer  witli  a  stock  broker  may  be  varied  by  oral  evi- 


roderie.  9  id.  278;  Davis  v.  Stern,  15 
id.  177;  Garrett  v.  Crooks,  id.  483; 
Barbin  v.  Gaspard,  id.  439:  Farrell 
V.  Bean,  10  Md.  217;  Holbrook  v. 
Burt,  22  Pick.  (Mass.)  546;  Sanford 
V.  Handy,  23  Wend.  (N.  Y.)  1260; 
Bartle  v'  Vasbury,  2  Grant  (Penn.), 
Cas.  277 ;  .  Hunter  v.  Bilyen,  30  111. 
228;  Baltimore,  &e.,  Steamboat  Co., 
V.  Brown,  54  Penn.  St.  77;  Stark  v. 
Littlepage,  4  Rand.  (Va.)  368.  In 
equity,  parol  evidence  is  admissible 
to  prove  fraud,  or  mistake,  or  sur- 
prise in  a  written  agreement.  But 
the'  evidence  must  be  strong  and 
clear.  Hunt  v.  Rousmanier,  8  Wheat. 
(U.  S.)  174;  McMahon  v.  Spankler, 
4  Rand.  (Va.)  51.  Parol  testimony 
is  admissible  to  show  that  the  party 
was  fraudulently  deceived  and  mis- 
led as  to  the  contents  of  the  written 
instrument.  Selden  v.  Myers,  20 
How.   (U.  S.)   506. 


*  Paxton  V.  Popham,  9  East  421; 
Collins  v.  Blantern,  2  Mils.  341 ;  Mar- 
tin V.  Clarke.  8  R.  I.  389:  Leppoe  v. 
Nat'l  Union  Bank.  Md.  136. 

'Howie  Bros.  v.  Walter  Piatt  & 
Co.,  83  Miss.  15,  35  So..  216;  "O'Con- 
nor V.  Lightbizer,  34  Wash.  152,  75 
Pae.  643. 

*  Machin  v.  Prudential  Trust  Co., 
210  Penn.  St.  253,  59  A.  1073. 

'Kan.  Citv,  M.  &  B.  R.  Co.  v. 
Chiles  (Miss.,  1905),  38  So.  498; 
Glisson  V.  Paducah  Rv.  &  Light  Co. 
(Ky.,  1905),  87  S.  W."^  305. 

'"  Rambo  v.  Patterson,  133  Mich. 
655,  95  N.  W.  722. 

"  Krueger  v.  Nicola,  205  Penn.  38, 
54  A.  494. 

"Friend  v.  Miller,  52  Kan.  139, 
34  P.  397,  39  Am.  St.  Rep.  340. 

"  Lvtle  v.  Scottish  American  Mort- 
gage Co.   (Ga.,  1905),  50  S.  E.  402. 


Sec.  25.]  Parol  Evidence  as  to  Writings.  8'^ 

dence  of  the  real  understanding  of  ^tbe  parties  to  show  that  it  was 
really  void  as  a  wagering  contract.'* 

It  may  be  said  that  parol  proof  is  admissible  to  show  that  a  writ- 
ten contract,  though  clothed  in  due  form,  and  conferring  appar- 
ently a  just  right,  contravenes  a  prohibitory  law  m  the  interest  ot 
public  morals,  and  so  is  a  nullity.  Indeed,  parol  evidence  is  ad- 
missible whenever  the  obligation  is  one  contracted  in  fraudem 
legis.  It  is  immaterial  what  form  may  have  been  given  to  the 
reprobated  contract.'"  .^,      • 

Circumstances  which  go  to  show  that  a  deed  or  other  written  m- 
.strument  was  never  duly  executed  by  the  party,  may  always  be 
shown,  as  that  the  writing  was  misread,  or  that  one  instrument 
was  substituted  for  another,  and  thus,  that  his  sigiiature  thereto 
was  fraudulently  obtained,'^  or  that  in  reading  the  instrument    a 
material  part  of  it  was  suppressed,"  or  indeed  any  act  of  the  other 
party  which  amounted  to  such  a  fraud  upon  the  party  executing 
the  instrument,  that  it  is  not  the  instrument  which  he  designed  to 
■execute.'^    But  in  the  absence  of  misrepresentation  or  trick  or  de- 
ception concerning  the  execution  of  a  paper,  it  is  not  open  to  a 
partv  who  has  signed  it  to  claim  that  he  had  not  read  it,  as  he  was 
"  somewhat  hurried,"  and  therefore  that  he  was  not  bound  l>y  it. 
Where  names  are  signed  in  a  blank  book  and  articles  of  copartner- 
ship are  afterwards  inserted  in  the  book,  or  are  in  a  different  place 
in  the  book  parol  evidence  is  admissible  to  show  that  one  so  signing 
did  not  intend  to  sign  the  partnership  articles.^°    Oral  evidence^  is 
admissible  to  show  that  the  defendant  signed  a  certain  order  tor 

"Wheeler    v.    Metropolitan     Stock  '^  Lazare    v.    Jacques,    15    La.    An. 

^^^;^Tf  eady^'c^.'coilins^v.'Btan-  ''' Owen's  Case,  1   Bland  Ch.    (Md  ) 

in  an  eaiiy    '''"''^'  ^,  ,.  ,_ ,  .i,„^  ;i.  391.   Van  Valkenburgh  v.  Rourk.   12 

feui^^'Say  r^S^t^i  Sni  John.   ,N    Y.,    337  ..Swisher  v.  Win- 

&L  -lot J  upo'n  a  ;;«f;,»"t,X"  ""M  ,'tJnT  0 harder.  8  Cow.    ,N. 

que„tly    to    «"»/°"''j'|/nlter  Y.)   10;  Franchot  v.  Leach,  5  id.  .508, 

under  Mai   or  ™%„""Vn     «n(<!)    it  C  eery  v.  Holly.   14   Wend.    (N.   Y.) 

S  S^£t  In  X^'o'f  Ld  2.,  fribhle  v.  Oldhan,  5  .,.  J.  Mar. 

r,„f  7oSr-\i:r  S,rV,."  yi^^.  ^.,  m  Fra„ehot  v. 
,isLt  M  tl..  oo»<i.<,<».  of  ihe  Und  Leach,  «.«^»_^  ^  ^  ^  p  ^  ^^  ^^ 
""■xhu;.  the  State  may  show,  in  a  con-      Vanordstrand,  67   Kan.  380,  73  Pac. 


+P^t  for  a  succession  with  a  duly  ac-        ii^. 

Swledid    natural    child,    that    the  =»Mooi.  v.   May,   11.    Wis.   192 

latter  is  the  otisprino;  of  an  adulter-       N.  W.  45 

ous  connection.       Succession  of  l^let- 

cher,  11  La.  An.  59. 


94 


88  EviDEosrcE.  [Chap.  2.. 

goods  only  for  another  party,  and  on  the  express  understanding 
that  he  should  not  be  liable  on  it."^ 

Upon  the  same  principle,  parol  evidence  is  admissible  to 
show  that  at  the  time  when  the  instrument  was  exe- 
cuted, the  party  executing  it  had  not  the  capacity  to  do  so, 
in  order  to  negative  the  idea  that  it  is  his  deed  or  contract,^^  as  that 
he  was  a  lunatic  ;"^  or  so  intoxicated  as  not  to  know  what  he  was 
doing  f^  or  that  it  was  executed  under  duress  f^  or  tliat  the  party 
was  under  some  legal  disability,  as  coverture^^  or  infancy.^'' 

Parol  evidence  is  always  admissible  to  show  that  a  contract  was 
delivered  conditionally  and  never  became  operative.^  So,  parol 
evidence  is  admissible  to  show  that  an  offer  apparently  uncon- 
ditional was  delivered  by  the  defendant  to  the  plaintiff  only  on  con- 
dition that  other  creditors  should  make  the  same  agreement.^^ 

In  the  case  of  unsealed  instruments,  parol  evidence  is  compe- 
tent between  the  original  parties  to  prove  that  a  paper  perfect  on 
its  face,  whether  negotiable  or  not,  -was  payable  to  the  payee  or 
any  other  person  on  condition  that  it  was  not  to  take  effect  except 
in  a  given  event  or  upon  a  given  condition,  or  was  only  to  be  used 
for  a  given  purpose.  As  to  sealed  instruments,  if  a  bond  is  per- 
fect on  its  face  and  the  delivery  is  by  the  sole  obligor,  or  by  all  the 
obligors,  to  the  obligee,  the  delivery  is  absolute,  and  the  condition 
void.  Such  a  bond  cannot  be  so  delivered  in  escrow  to  the  obligee, 
and  parol  evidence  is  inadmissible  to  affect  its  validity.  The  above 
observations  are  applicable  where  the  bond  is  perfect  on  its  face. 
If  imperfect,  parol  evidence  is  admissible  to  show  the  conditions., 
no  matter  by  whom  delivered ;  the  instrument  itself  affecting  the 
oblio-ee  with  notice  of  its  incompleteness.^°  Evidence  is  admissible 
to  show^  that  a  written  contract  was  to  have  no  force  unless  certain 

"Hackney  v.   McKee,   12  Okl.   401,  =' Worcester    v.     Eaton,     13     Mass, 

75  Pac.  535.  i~\;      Staufi'er  v.  Latstraw,  2  Watts 

^Champion  v.   White,   5   Cow.    (N.  (Penn.),   105:   Burrougs  v.   Richman, 

Y  )   510.  1  ^I^-  -'^•^'   Rich^irdson  v.  Duncan,  3 

"Dalev   Roosevelt,  9  Cow.  (N.  Y.)  N.    H.    508:      Jackson   v.    Myers,    11 

310;   Den  v.  Clark,   10  N.  J.  L.  217;  Wend.    (N.  Y-.)    536. 

Grant    v     Thompson,    4    Conn.    203 ;  ="=  Dale  v.  Roosevelt,  ante. 

Jackson    v.    King,    4    Cow.     (N.    Y.)  =' Van    Valkenburgh    v.    Rourk,    12 

207-      Mitchell   v.  Kingman,   5   Pick.  John.    (N.   Y.)    338. 

(Mass.)    481.  ^^McCormick  Harvesting  Maeh.  Co. 

^*Dale  V.   Roosevelt,   ante;  Barrett  v.  Morlan,   121   Iowa,  451,  96  N.  W. 

V.   Buxton,  2   Aik.    (Vt.)    167;    Pren-  976. 

tice  V    Osborn    2   Paige  Ch.    (N.  Y'.)  -'Elastic   Tip   Co.    v.   Graham,    185 

31;  Rice  v.   Peat,   15  John.    (N.  Y.)  Mass.  597,  71  N.  E.  117. 

PQ3  sogjjjjr   V.   Security   Bank   of  Rich- 

"      •  mond,  103  Va.  762,  50  S.  E.  262. 


See.  25.] 


Paroi,  Evidence  as  to  Writings. 


89- 


con<litions  were  fulfilled,^'  and  conteniporaneous  conversation  and 
agreements  of  the  parties  are  admissible  on  the  question  of  the  ex- 
ecution of  a  contract  where  it  is  claimed"  that  it  was  executed  con- 
ditionally only.^^ 

If  a  deed  with  the  regular  evidence  of  complete  and  unqualified 
execution  on  its  face,  has  been  signed,  sealed  and  delivered  to  the 
party,  parol  evidence  of  a  contemporaneous  agreement  or  under- 
standing that  it  should  not  take  effect  until  a  certain  event,  is  inad- 
missible, as  going  to  vary  the  terms  of  the  deed,  and  make  that 
conditional  which  appeared  to  be  absolute.^^ 

Parol  evidence  is  admissible  to  show  that  a  contract  was  not  tO' 
take  effect  until  the  happening  of  a  condition  precedent,  but  can- 
not be  used  to  show  that  the  contract  took  effect  but  was  made  void 
by  the  happening  of  a  condition  subsequent.^''  It  is  not  compe- 
tent to  establish,  under  pretense  of  delivery  as  an  escrow,  con- 
ditions in  the  contract  itself,  different  from  its  face,  and  repugnant 
to  it.^"  So,  a  guarantor  on  an  absolute  guaranty  may  not  show  by 
parol  that  he  understood  that  the  sum- guaranteed  was  to  be  paid 
only  out  of  a  certain  fund.^^ 


"  O'Connor  v.  Lightbiger,  34  Wash, 

152,  75  Pae.  643. 

3- Wilbur  V.   Stoepel.  82  Mich.  344, 

46  N.  W.  724,  21  Am.  St.  Rep.  568. 
=5  Whitney  V.  Dewey  (Idaho,  1905), 

80  Pae.   1117;     IMays  v.  Shields,   117' 

Ga.    814,   45    S.    E.    68;      Sargent   v. 

Cooley,    12   N.   D.   1,   94   N.   W.   576; 

Ward  V.  Lewis,  4  Pick.   (Mass.)   518; 

Dix.  V.  Otis  5  id.  38;  contra,  Titvis  v. 

Mvers,  11  Wend.   (N.  Y.)   596. 

'^MVare  v.  Allen,  128  U.  S.  590,  9 
Sup.  Ct.  174;  State  v.  Chamber  of 
Commerce,  121  Wis.  110,  98  N.  W. 
930,  where  evidence  was  admitted  to 
show  that  a  sale  of  stock  was  not  to 
be  effective  in  case  the  stock  had 
already  been  sold  by  one  having  a 
power  of  attorney  to  stU  it.  For  a 
like  decision  on  the  srame  facts  see 
Reiner  v.  Crawferd,  23  Wash.  669,  63 
P.  516.  83  Am.  St.  Rep.  848. 

"  Whe,re  conditions  subsequent  are 
to  be  performed  in  order  tO'  render 
the  note  or  bond  operative,  and  when 
operative  the  written  instrument  is 
expressive  of  the  entire  contract, 
then  it  must  be  delivered  to  a  third 
person,  or  the  delivery  to  the  obligee 
in  escrow  will  be  a  good  delivery,  and 


the  instrument  cannot  be  contradict- 
ed by  parol  varying  its  terms.  It  is- 
a  completed  contract,  subject  to  con- 
ditions subsequent  not  in  writing. 
But  where  the  delivery  would  defeat 
the  real  contract  between  the  parties, 
then  it  is  competent  to  prove  by  parol 
( 1 )  the  whole  contract,  and  that  the 
writing  was  only  a  part  of  the  con- 
tract; or  (2)  to  explain  the  consid- 
eration; or  (3)  to  show  that  it  was 
part  of  the  contract  that  the  writing 
was  delivered,  but  not  to  become  op- 
erative until  another  part  of  the  con- 
tract— condition  precedent — was  ful- 
filled." So  parol  evidence  should  be 
admitted  to  show  that  a  certain  note 
was  executed  on  the  understanding 
that  it  would  not  be  binding  except 
if  a  certain  policy  when  it  arrived 
was  satisfactory  and  accepted  by  the 
maker  of  the  note.  Graham  v.  Kern- 
mel  (Ark.  1905),  88  S.  W.  899. 

^°  State  V.  Perry,  1  Wright  ( Ohio. ) , 
662. 

^"McKee  v.  Needles,  123  Iowa  195, 
98  N.  W.  618..^ 

A  surety  in  a  joint  and  several 
bond,  it  has  been  held,  may,  when 
sued,  show  that  lie  signed  it  on  con- 


90  EviDEJsrcE.  [Chap.  2. 

Sec.  26.    Consideration. 

As  a  general  rule,  the  consideration  of  a  contract  is  open  to  in- 
quiry as  between  the  original  parties,  and  even  the  consideration 
of  a  deed  may  be  inquired  into  when  the  principles  of  justice  re- 
quire it.  But  this  rule  is  applicable  only  where  the  statement  as 
to  the  consideration  in  the  contract  is  merely  by  way  of  recital.. 
The  consideration  may  be  so  referred  to  in  the  contract  as  to  make 
it  one  of  its  terms  and  conditions.  When  this  is  true,  parol  evi- 
dence is  not  admissible  to  vary  the  term,  although  the  term  relates 
to  the  consideration.  In  a  written  contract  which  carries  on  its 
face  mutual  promises,  terms  and  conditions  expressed  on  one  side 
may  be  the  consideration  for  terms  and  conditions  expressed  on  the 
other.  In  such  a  case  proof  of  a  consideration  different  from  that 
expressed  in  the  written  instrument  might  alter  its  terms  and  con- 
ditions, and,  if  it  would,  it  is  inadmissible.^  The  consideration 
cannot  be  varied  by  parol  when  thereby  the  legal  efiFect  of  the  in- 
strument to  pass  the  interest  therein  designated  would  be  de- 
feated.^ The  true  consideration  for  a  release  or  other  written  con- 
tract may  always  be  shown  when  the  consideration  is  set  forth  as 
$1.00,^  or  is  indefinite.^ 

The  ivant  or  failure  of  consideration  may  also  be  proved  by 
parol  evidence  showing  that  the  written  agi-eement  is  not  binding,^ 

dition  that  others,  besides  those  whose  the   transferee  to  carry  on   the  busi- 

names  are  signed  to  it,  would  execute  ness  more  conveniently  is   inadmissi- 

it,  and  that  their  signatures  were  not  ble.     Arnold  v.  Arnold,       Cal.       ,  70 

procured.      United    States    v.    LeflBer,  Pac.  23. 

11    Pet.    (U.    S.)    86.      The   principal  ^  Anderman  v.  Meier,  91  Minn.  413, 

was   intrusted   to   procure   the   signa-  98  N.  W.  327. 

tures   in   this   case,    and   it  does   not  Where   a   written   memorandum    of 

appear  that  the  obligees  were  in  any  sale    of    valuable    goods     is.    signed, 

manner    apprised    of    the    conditional  stated    to    be    "in     consideration     of 

delivery.       In     Louisiana     a     similar  $1.00,"    parol    evidence    is    admissible 

point  arose,  and  the  court  held,  that  to    show    that    it    was    orally    agreed 

as  there  was  nothing  on  the  face  of  that   $200   should  be   paid   down   and 

the    bond   showing   that   other   signa-  that  on  the   failure   of  the   buyer   to 

tures  were  intended,  the  surety  could  pay  the  $200  the  seller  declared  the 

not   avail    himself    of    the    breach    of  sale  off.     Schwarz  v.  Lee  Gon    (Ore., 

trust  on  the  part  of  the  principal,  to  1905),  80  Pac.  110. 
defeat    a    recovery    bv    the    obligees.  '  Burk   v.   Mead,    159   Ind.    252,    64 

Police  Jury  V.  Haw,  1  Mill.    (La.)    41.  N.  E.  R.  880. 

MVellmaker      v.      Wheatley      (Ga.,  ®  Bickels   v.   Cunningham,    14   ]\Iis3. 

1905),  51   S.  E.  430.  358:      Long   v.    Davis,    18   Ala.   801; 

^  Where  a  partnership  dissolution  Herrick  v.  Bean.  20  Me.  51 ;  Smith 
agreement  recites  that  it  is  made  for  v.  Brooks,  18  Ga.  440;  Great  West- 
value  evidence  that  it  was  made  with-  ern  Ins.  Co.  of  Aurora  v.  Cobb,  21 
out    consideration    simply    to    enable  Ind.   492;      Collier  v.   Mahan,  21   id. 


Sec.  26.]  Paeol  Evidence  as  to  Writings.  91 

unless  it  is  under  seal,  whieh,  in  the  absenee  of  fraud,  is  conclusive 
evUen      of  a  sufficient  consideration.'    But  if  «o  consideration 
Stated  in  the  deed  or  contract,  the  party  will  be  allowed    o  pro  e 
one  by  extrinsic  evidence  f  and  if  the  deed  is  expressed  to  be  made 
"for  divers  good  considerations,"  it  may  be  averred  and  proved  by 
narol  that  the  barcainee  gave  money  for  his  bargain. 
^  It    ™s  formerly  the  rule  that   if  an  instrument  under  seal 
specifiL    any    particular  consideration,    as,    ^■>^J^^l2s^l 
and  affection,   and  omits   all  menUon  of  any  othei    consdera 
ttn,     no     exlrinsic     proof     of     another     can     in     general     be 
Pe^,     because     such     proof     would     contradict     the     deed. 


110  A  person  cannot,  under  the 
guise  of  proving  the  consideration 
of  a  contract  by  parol,  add  to  or 
subtract  from  the  written  contract  in 
any  of  its  provisions.  Howe  v.  Walker. 
4  Gray  (Mass.),  318;  Munde  v.  Lani- 
bie,  122  Mass.  336;  Foster  v.  Jolly,  1 
C  M.  &  R.  707:  Solly  v.  Hinde,  2 
Cr.  &  M.  516;  Abbott  v.  Hendricks,  1 

■'  Holbrooiv  v.  Holbrook,  30  Vt.  432 ; 
Johnson  V.  Bayles,  26  Ala.  576;  Mor- 
ris, &c.,  Co.  V.  Ryerson,  27  N.  J.  L. 
457;  Morse  v.  Shattuck,  4  Is.  H.  ^-y, 
Kuniler  v.  Ferguson,  7  Minn.  442; 
Swafford  V.  Whipple,  3  Iowa  261; 
Lawton  v.  Buckingham,  15/^.-^; 
Emmons  v.  Littlefleld,  13  Me.  233; 
Bennett  v.  Solomons,  6  Cal.  l^-i; 
Strawbridge  v.  Cartledge,  /  Watts 
(Penn.).  394;  Ely  v.  Alcott,  4  Allen 
(Mass.),  506;   Jones  v.  Jones,  12  Ind. 

389 

,« Peacock  v.  Monk,  1  Ves.  Sr.  128; 
Merle  v.  Matthews,  26  Cal.  455;  \^  ood 
V.   Beach,  7   Vt.  52;   Frink  v.  Green, 

5  Barb.  (N.  Y.)  455;  White  v.  Weeks, 
1  Penn.  486.  ^     ,  ^.    tvt 

•  2  Ph.  Ev.  353 ;   Tull  v.  Parlett.  M. 

6  M.  472 ;  Benedict  v.  Ljmch,  1  John. 
Ch  (N.  Y.)  370;  Chesson  v.  Petti- 
iohn,  6  Ired.  (N.  C.)  L.  121;  Pome- 
roy  v.  Bailey,  43  N.  H.  118:  Morris 
V.  Ham,  R.  M.  Charlt.    (Ga.)    26/. 

^"Peacock  v.  Monk,  1  Ves.  Sr.  128; 
Gale  V.  Williamson,  8  M.  &  W.  408; 
EUinf'er  v.  Crowl,  17  Md.  361;  Har- 
Hson^v.  Castner,  11  Ohio  St.  339; 
Thornburgh  v.  Newcastle,  &c.,  K.  K. 
Co  14  Ind.  499;  Mead  v.  Steger,  5 
Port.  (Ala.)  498 ;  Hendricks  v.  Crow- 
ley   31  Cal.  471;   Lutburrow  v.  Hen- 


derson, 30  Ga.  482.  A  recital  in  a 
note  that  it  was  dven  for  the  pur- 
chase-money of  land  may  be  contra- 
dicted by  parol  evidence,  even  between 
the  parties.  Hicks  v.  Morris,  57  iex. 
658  •  S.  P.  Lawe  v.  Thompson,  86  ind. 
503;   Bragg  v.  Stanford,  82  id.  254. 

Still,  if  the  object  is  to  establish  or 
negative  the  existence  of  fraud,  such 
proof     will     be     admissible.        Ihus, 
where     a     conveyance     purported     to 
have  been  made  in  consideration  -of  a 
certain  sum  and  natural  love  and  af- 
fection, in  a  suit  to  set  it  aside,  ex- 
trinsic  evidence   was   held   admissible 
to  show  that  the  estates  were  worth 
much  more  than  that  sum,  and  that 
natural  love  and  affection  constituted 
no    part    of    the    real    consideration. 
Filmer  v.  Gott,  7   Bro.  P.  C    70;    R. 
V.  Scammonden,  3   T.  R.   475.     Parol 
evidence  is   held  to  be  admissible  to 
show  a   consideration   in   addition   to 
that  named  in  the  deed.     Vail  v.  Mc- 
Millan,  17   Ohio  St.  617;  Hayden  V 
Meutzer,    10    S.    &   R.    (Penn.)    329, 
Miller   V.  Goodwin,   8   Gray    (Mass.), 
54.7 .   Perry  v.  Central,  &c.,  K.  K.  '^o., 
5  Cixldw.  *(Tenn.)    138;   Henderson  v. 
Dodd.  1  Bailey   (S.  C.)    Ch.  138.     So 
where  a  father  assigned  his  house  and 
personalty   to   his   son   by   deed,      m 
consideration  of  natural  love  and  af_ 
fection,"    and    afterwards   the   sheiiff 
seized    part   of   the    personalty  under 
a  fi   fa.  against  the  father,  the  son,  in 
pi^ceeding    against    the    sheriff,    was 
permitted  to  give  evidence  of  a  valu- 
able consideration,  and  thus  to  rebut 
the    presumption     of     fj^ud    against 
creditors,   which    a    deed   made    by   a 
debtor    in    consideration    of    natuiai 


92  Evidence.  [Cliap.  2^ 

But,  it  is  now  the  well-settled  rule  in  this  country 
that  although  the  actual  consideration  may  be  different  in  kind  or 
amount  from  that  named  in  the  deed,  or  although  the  deed  may 
contain  no  expressed  consideration,  the  consideration  may  be 
proved  by  evidence  dehors  the  deed.^^  Where  the  recital 
of  consideration  in  a  deed  states  a  nominal  sum,  the  true  considera- 
tion may  be  shown,^^  or  where  the  consideration  in  a  deed  is  "  love 
and  affection  and  one  dollar,"  it  may  be  shown  by  parol  that  part 
of  the  consideration  was  a  conveyance  of  an  interest  in  land/^ 
Where  a  deed  is  expressed  tO'  be  in  consideration  of  one  dollar  and 
of  the  grantee's  agreement  to  pay  the  grantor's  debts,  the  grantor 
may  show  that  it  had  no  debts,  tliat  the  consideration  expressed  in 
the  deed  was  merely  nominal,  and  then  may  introduce  parol  testi- 
mony of  the  real  consideration  and  show  its  failure.^*  Parol  evi- 
dence is  admissible  to  show  that  the  real  consideration  for  a  deed 
was  the  agreement  of  the  railroad  company  to  erect  a  station  on  a 
neighboring  piece  of  land,^^  or  was  a  certain  agreement  between 
the  grantor  and  grantee  as  to  growing  crops,^''  or  was  an  agreement 
by  a  son  to  support  his  parents."  Parol  evidence  is  admissible  to 
show  that  at  the  time  of  a  conveyance  it  was  agreed  that  the  consid- 
eration named  in  the  deed  should  be  paid  only  when  the  grantor 
had  perfected  his  title,^^  or  to  show  that  the  price  of  land  was  to. 
depend  upon  its  area,  and  that  in  computing  this  a  mistake  was 
made.^®    In  a  suit  on  a. covenant  of  seisin  in  a  deed,  the  defend- 

love    and.    affection    prima    facie    im-  sale  of  land  is  admissible  to  contra- 

ports.     Gale  v.   Williamson,   8   M.   &  diet    the    consideration    named    in    a 

W.   405;   Pott   V.   Todhunter.    2   Coll.  deed    resutin":    from    the    agreement. 

C   R.  76-   Drury  v.  Tremont  Improve-  Conklin  v.  Hancock,  67  Ohio,  455,  66 

ment    Co.,    13    Allen     (Mass.),    168;  N.  E.  R.  518. 

Lamb     v.     Donovan,      19     Ind.     40;  "  Furst     v.     Galloway      (W.     Va., 

Gelpcke  v.  Blake,  19  Iowa,  263.  1904),   49   S.  E.    146. 

"  Conklin  v.  Hancock,  66  Ohio,  455,  "Edwards  v.  Latimer,  183  Mo.  610, 

66   N.   E.   R.   519;      Johnson  v.   Bean  82  S.  W.  109. 

(Minn.,  1904),  99  N.  W.  893.      (Pur-  "Medical     College     Laboratory     v. 

pose  of  deed  to  pass  title  merely  and  New  York  University,  178  N.  Y.  153, 

not  state  whole  agreement  of  parties.)  70  N.  E.  R.  467,  472. 

Collins   V.   Tillou's.  AdmV.   26   Conn.  ^'  St.  Louis  &  A.  R.  Co.  v.  Crandali 

368,  68  Am.  i3ec.  398;   Henry  v.  Zur-  (Ark.,   1905),   86   S.  W.   855. 

fiieh,  203  Penn.  440.  53  A.  243.  where  '"^  Breiterwischer     v.     Clough,     111 

the    deed   named   $2,500   as    the    con-  Mich.  6,  66  Am.  St.  Rep.  372,  69  N. 

sideration    and    the    grantor   was   al-  W.  88. 

lowed  to  testify  that  the  real  consid-  "  Halvorsen  v.  Halvorsen,  120  Wis. 

eration  was  $4,500.     McGarv  v.   Mc-  52,  97  N.  W.  494. 

Dermott,    207    Penn.   620,   57    A.   46;  'Mohnson   v.    Bean    (Minn.,    1904), 

Butt  V.   Smith.   121    Wis.   566.  99  N.  99  N.  W.  893. 

W.  328.  A  written  agreement  for  the  ^'  Cardinal    v.    Hadley,    158    Mass. 


Sec.  27.]  Pakol  Evidence  as  to  Weitings.  93 

ant  was  allowed  to  show,  on  the  question  of  damages,  that  the 
nhin  ff  only  bot,ght  the  surface  of  the  coal  lands  conveyed,  the 
cot."!  tiding  tha?  such  evidence  went  only  to  the  constderation 
and  not  to  the  substance  of  the  deed." 

Kotwithstanding  the  acknowledgment  in  a  deed  of  the  receipt  of 
the  purchase-money,  it  may  be  shown  by  parol  that  '    --  ™    - 
fact  paid,-  or  that  it  was  paid  by  money  or  Property,  a.  it ,.  noth 
ing  more  than  a  receipt,  and  is  open  to  explanation.       Its  only 
effect  is  to  estop  the  g4ntor  from  setting  up  a  want  of  considera- 
it      Id  for  every  0^  purpose  it  is  open  to  explanation,  and 
Z'  be  varied  by  parol  proof.-    Where  the  payment  of  the  consid- 
era  ion  is  neeess'a ry  to  sustain  the  validity  of  the  deed  or   he  con- 
trac    in  question,  the  acknowledgment  of  payment  -  oontracti  al 
n  its  nanire,  and  cannot  be  contradicted  by  parol  i^oof ;  but  wh    e 
it  is  to  be  treated  merely  as  a  receipt  for  money,  it  is  only  pnma 
/I    .  evWence  of  the  payment,  and  the  fact  that  there  was  no  pay- 
(nclt  or  that  the  consideration  was  other  than  that  expr*sed  m 
the  deed,  may  be  shown  by  oral  evidence. 

Sec.  27.  Mistake. 

Courts  of  equity  will  also  sometimes  admit  parol  evidence  to 
contradi  t  or  vary  a  writing,  where  by  some  mtstalce  ^nfact,  it 
:p;rks  a  dSerent'lan^age  from  what  the  parties  intended,  and 

352,  33  N.  E.  575,  35  Am.  St.  Rep.       236;  Davenport   -   "^'--/^..M-'; 

492.  ^^„    Til     foi         rinnn  V   Linell,  20  Pick.   (Mass.)247; 

-Lloyd  V.   Sandusky,  203   111.  621,       ^lapP  ^ •  l^mel^,      ^^   ^     j     ^^     240; 

€8  N.  E.  R.  154,  159.  ^P^       ^  ^,    Scofield,  9  N.  J.  Eq.  492; 

a^Fowlkes  V.  Lea,  84  Miss.  509,  36       ^™;,;/;   kittle,  14  Johns.    (N.  Y.) 

^°-  ^^?^-  TT  ^  -^R  Til  533-  Va'u-  210  Whitbeck  v.  Whitbeck,  9  Cow 
"Elder  V.  Hood,  38  IIL5-i^,vau  .^'y.  2G6 ;  Baker  v.  Connell.  1 
gine  V.  Taylor,  18  Ark.  6.-,;  Coles  v.  ^^-  ^-^  Y.),  469;  Wesson  v.  Ste- 
■Soulsby,  21  Cal.  47;  Millard  v.  Hath-  Ualy  ^  >  55^.  Se- 
away. 27  id.  119;  CaU'-i^^^^y  ;•  whv  Turner,  6  Rich.  (S.  C.)  117; 
Hearn,  1  Houst.  (DeL)  60n  Bratt  v.  gf^^^  ^'^^"pif^;  21  Tex.  260;  White 
Bratt,  21  Md.  578;  Hams  v.  Hariis,  ^'^^^  y^  380. 
^Harr.  (Del.)  354 :  Ayers  v.  McCon-  ^.Mmei  ^^^^.^^^^  ^^  ^^^.^ 
nel,   15  HI.  230;   Kimball  v.  Walkei,              ^l^'^P" 

30   HI.   482:   Halt  v.   Perry,   3   Imva,  ^  ^,- ^^^^.;/;,    leaver    (N.   C,   1904), 
579;   Barbank  v.  Gould.   15  Me.   ll»,  y..    \U.     Holding  that  the  re- 

^^■^s^^  -M<g.  5--;„?s;:s/ort,st;s;tTe 

S?^u„'rHSe,'so?.7ii.a'„riMlV,      denied  by  parol. 


94 


Evidence. 


[Chap.  2. 


where,  consequently,  it  would  be  unconscientious  or  unjust  to  en- 
force it  against  either  party  according  to  its  expressed  terms.^    In 


'  Hunt  V.  Rousmanier,  8  Wheat, 
(U.  S.)  211;  Peterson  v.  Grover,  20 
Me.  363;  Anderson  v.  Bacon.  1  A.  K. 
Mar.  (Ky.)  48;  Huston  v.  Stoble,  4 
J.  J.  Mar.  (Ky.)  130;  Blanchard  v. 
Moore,  4  id.  471;  Gibson  v.  Watt.  1 
McCord  Ch.  (S.  C.)  490;  Perry  v. 
Pearson,  1  Humph.  (Tenn.)  431;  Van 
Ness  V.  Washington,  4  Pet.  (U.  S.) 
232;  Harrison  v.  Howard,  1  Ired.  (N. 
C.)  Eq.  407;  Evans  v.  Hooper,  3  N. 
J.  Eq.  204;  Mageehan  v.  Adams,  2 
Binn.  (Penn.)  109.  A  mere  clerical 
error  may  be  shown  in  a  court  of 
laAV,  as  an  error  in  the  date.  Leggitt 
V.  Buckhalter,  30  Miss.  421. 

In  respect  to  mistakes  of  law,  as 
contradistinguished  from  mistakes  of 
fact,  see  Wheaton  v.  Wheaton,  9 
Conn.  96;  Lowndes  v.  Chisholm,  2 
McCord  (S.  C.)  Ch.  455;  Hopkins' 
Ex'rs  V.  Mazyck,  1  Hill  Ch.  (S.  C.) 
251;  Fitzgerald  v.  Peck,  4  Litt.  R. 
125;  Cnamplin  v.  Laytin,  1  Edw.  Ch. 
(N.  Y.)  467;  Hunt  v.  Rousmanier,  1 
Pet.  (U.  S.)  15;  8  Wheat.  (U.  S.) 
174;  3  Mas.  (U.  S.)  294;  Sims  v. 
Lyle,  4  Wash.  C.  C.  R.  301,  320;  Heil- 
ner  v.  Imbrie,  6  S.  &  R.  (Peim.)  411; 
Lyon  V.  Richmond,  2  John.  Ch.  (N. 
Y.)  51;  Williams  v.  Hodgson,  2  H.  & 
J.  (Md. )  474;  Lammat  v.  Browby,  6 
id.  24;  Rawstone  v.  Parr,  3  Russ. 
424;  Clark  v.  Dutcher,  9  Cow.  (N. 
Y. )  674;  Lawrence  v.  Beaubin,  2 
Bail.  (S.  C.)  623;  Moser  v.  Lieben- 
guth,  2  Rawie  (Penn.),  428;  Haven 
V.  Foster,  9  Pick.  (Mass.)  112;  Shot- 
well  V.  Murray,  1  John.  Ch.  (N.  Y.) 
512;   Storrs   v.    Barker,   6   John.    Ch. 

(N.  Y.)  166;  Naylor  v.  Wench,  1 
Sim.  &  Stud.  561;  Jones  v.  Watkins, 

1  Stew.  81;  Ward  v.  Tucker,  7  Mass. 
449;  Hubbard  v.  Martin,  8  Yerg. 
(Tenn.)  498;  Dickens  v.  Jones,  6  id. 
483;  Besore  v.  Potter,  12  S.  &  R. 
(Penn.)  158;  Robinson  v.  Wiley,  15 
N.  Y.  489. 

As  to  showing  fraud,  surprise  and 
mistake,  in  answer  to  a  bill  for  a  spe- 
cific performance  of  an  agreement,  see 

2  Story's  Eq.  24  et  seq.;  Ratcliffe  v. 
Allison,  3  Rand.  (Va.)  537;  Brad- 
bury V.  White,  4  Me.  391;  Young  V. 
Craig,  2  Bibb  (Ky.),  270:  Fisher  v. 
May,  2  id.  451;  Smith  v.  Smith,  4  id. 
81;     Harrison     v.     Talbot,     2     Dana 


(Ky.),  258;  Gower  v.  Sterner,  2 
Whart.  (Penn.)  75,  79;  Moliere  v. 
The  Pennsylvania  Ins.  Co.,  5  Ravvle 
(Penn.),  342;  \^lieatley  v.  Slade,  4 
Sim.  126;  Cathcart  v.  Robinson,  5 
Pet.  ( U.  S. )  264 ;  Watts  v.  Waddle,  6 
id.  389;  Hutchinson  v.  McNutt,  1 
Hamm.  (Ohio)  14;  Askey  v.  Poyas, 
2  Dess.  (S.  C.)  Eq.  145;  Meads  v. 
Lansing,  1  Hopk.  Ch.  (N.  Y.)  124; 
Faure  v.  Martin,  7  N.  Y.  210; 
Schmidt  v.  Livingston,  3  Edw.  Ch. 
(N.  Y.)  213;  Best  v.  Stow,  2  Sand. 
Ch.    (N.  Y.)    298. 

As  to  the  admissibility  of  parol  ev- 
idence, in  courts  of  equitv,  for  the 
purpose  of  obtaining  relief  against 
fraud,  and  what  constitutes  that 
species  of  fraud  vipon  which  those 
courts  will  interfere,  see  1  Story  Eq. 
166-168;  also  id.  194  et  seq.;  Gresl. 
Eq.  Ev.  206,  207;  Wilkinson  v.  Wil- 
kinson. 2  Dev.  (N.  C.)  Eq.  378;  Flag- 
ler V.  Pleiss,  3  Rawle  (Penn.),  345; 
Rice  V.  Spotswood,  6  Alon.  (Ky. )  40; 
Boyce  v.  Grundy,  3  Pet.  (U.  S.)  210; 
Sti'nson  v.  McKeown,  I  Hill  (N.  Y.) 
387. 

It  is  clear  that  a  party  may,  as 
plaintilf,  have  relief  against  a  writ- 
ten contract,  by  having  the  same  set 
aside  and  canceled  or  modified,  when- 
ever it  is  founded  in  mistake  of  ma- 
terial facts,  and  it  would  be  uncon- 
scientious and  unjust  for  the  other 
party  to  enforce  it.  See  Ball  v. 
Storie,  1  Sim.  &  Stud.  210.  And  this, 
although  the  party  seeking  the  relief 
drew  the  instrument  himself;  Id. ; 
Gibson  v.  Watts,  1  McCord  Ch.  (S. 
C. )  494,  495.  See,  furthers,  as  to  the 
general  doctrine,  Chase  v.  Manhardt, 
1  Bland  Ch.  (Md.)  333;  1  Story  Eq. 
164;  Fishback  v.  Woodford,  1  J.  J. 
Mar.  (Ky. )  84;  Bierne  v.  Erskine,  5 
Leigh  (Va.),  59;  McMahon  v.  Spang- 
ler,  4  Rand.  (Va.)  51;  Anderson's 
Ex'r  V.  Bacon,  1  Marsh.  (Ind.)  48; 
Love  v.  Cofer,  1  J.  J.  Mar.  (Ky.) 
327 ;  Bodley  v.  McChord,  4  J.  J.  Mar. 
(Ky.)  475;  Huston  v.  Noble,  4  J.  J. 
Mar.  (Kv.)  130;  Rice's  Heirs  v. 
Spotswood's  Heirs,  6  Mon.  (Ky.) 
40;  Inskoe  v.  Proctor,  6  Mon.  (Ky.) 
312;   Allen  v.  Hammond,  11  Pet.   (U. 

S.)   63.  .         .      ^     • 

But,  in  England,  it  is  not  admia- 


Sec.  27.] 


Paeol  Evidence  as  to  Writings. 


95 


all  eases,  however,  of  this  kind,  the  party  seeking  relief  under- 
takes a  task  of  gi-eat  difficulty,  since  a  court  of  equity  will  not  in- 


eible  for  a  plaintiff  to  allege  a  mis- 
take, with  a  view  of  correcting  the 
contract,  and,  at  the  same  time,  seek 
a  specific  performance  of  it  in  its 
rectified  state.  See  Gresl.  Eq.  Ev. 
206,  207.  Most  of  the  English  cases 
on  this  subject  will  be  found  col- 
lected in  the  notes  to  1  Story  Eq. 
174.  The  learned  author  remarks  in 
respect  to  this  doctrine,  that  "  it  is 
certainly  of  a  very  artificial  charac- 
ter, and  diffievilt  to  be  reconciled  with 
the  general  principles  of  courts  of 
equity."  It  is,  "  in  effect,"  he  says, 
"  a  declaration,  that  parol  evidence 
shall  be  admissible  to  correct  a 
writing  as  against  a  plaintiff,  but  not 
in  favor  of  the  plaintiff,  seeking  a 
epecific  performance.  There  is,  there- 
fore, no  mutuality  or  equality  in  the 
operation  of  the  doctrine.  The  ground 
is  very  clear,  that  a  court  of  equity 
ought  not  to  enforce  a  contract, 
where  there  is  a  mistake,  against  the 
defendant,  insisting  upon,  and  estab- 
lishing the  mistake ;  for  it  would  be 
inequitable  and  unconsientious.  And 
if  the  mistake  is  vital  to  the  con- 
tract, there  is  a  like  clear  ground 
why  equity  should  interfere  at  the  in- 
stance of  the  party,  as  plaintiff,  and 
cancel  it;  and  if  the  mistake  is  par- 
tial only,  why  at  his  instance  it 
should  reform  it.  In  these  cases  the 
remedial  justice  is  equal ;  and  the 
parol  evidence  to  establish  it  is 
equally  open  to  both  parties  to  use 
as  proof.  Why  should  not  the  party 
aggrieved  by  a  mistake  in  an  agree- 
ment, have  relief  in  all  cases,  where 
he  is  plaintiff,  as  well  as  wliere  he  is 
defendant?  Why  should  not  parol 
evidence  be  equally  admissible  to  es- 
tablish a  mistake  as  the  foundation 
of  relief  in  each  case?  The  rules  of 
evidence  ought  certainly  to  work 
equally  for  the  beneht  of  each  party. 
Mr.  Chancellor  Kent. has  forcibly  ob- 
served, '  that  it  cannot  make  any  dif- 
ference in  the  reasonableness  and  jus- 
tice of  the  remedy  whether  the  mis- 
take was  to  the  prejudice  of  one 
party  or  the  other.  If  the  court  has  a 
competent  jurisdiction  to  correct  such 
mistakes  (and  that  is  a  point  un- 
derstood and  settled),  the  agreement, 


when  corrected  and  made  to  speak  the 
real  sense  of  the  parties,  ought  to  be 
enforced,  as  well  as  any  other  agree- 
ment, perfect  in  the  first  instance.  It 
ought  to  have  the  same  efficacy,  and 
be  entitled  to  the  same  protection, 
when  made  accurate  imder  the  decree 
of  the  court,  as  when  made  accurate 
by  the  act  of  the  parties.  Res  acce- 
dent  lumina  rebus.'  It  may  be  a(ided, 
that,  if  the  doctrine  be  founded  upon 
the  impropriety  of  admitting  parol 
evdence  to  contradict  a  written 
lagreement,  that  rule  is  not  more 
broken  in  upon  by  the  admission  of 
it  for  the  plaintiff,  than  it  is  by  the 
admission  of  it  for  the  defendant.  If 
the  doctrine  had  been  confined  to 
cases  arising  unuer  the  Statute  of 
Frauds,  if  not  more  intelligible,  it 
would  at  least  have  been  less  incon- 
venient in  practice.  But  it  does  not 
appear  to  have  been  thus  restricted, 
although  the  cases  in  which  it  has 
been  principally  relied  on  have  been 
of  that  description.  It  will  often  be 
quite  as  unconscientious  for  a  de- 
fendant to  shelter  himself  under  a 
defense  of  this  sort,  against  a  plain- 
tiff seeking  the  specific  performance 
of  a  contract,  and  the  correction  of  a 
mistake,  as  it  will  be  to  enforce  a 
contract  against  a  defendant,  which 
embodies  a  mistake  to  his  prejudice. 
See  Comvn's  Digest,  Chancerv,  2  C. 
4;  2  X.  3;  4  L.  2."  1  Story  Eq.  175, 
note  1. 

The  doctrine  of  Woollam  v.  Hearn, 
7  Ves.  511,  and  other  English  cases 
proceeding  on  like  views,  holding, 
that  while  parol  evidence  may  be  re- 
ceived against  a  plaintiff  seeking  spe- 
cific performance,  it  will  not  be  re- 
ceived in  his  favor  to  rectify  a  writ- 
ten agreement,  has  been  distinctly 
repudiated  in  New  York,  and  seems 
indeed  not  ot  have  been  sanctioned 
by  any  of  the  courts  of  equity  in  this 
country.  See  Keisselbrack  v.  Living- 
ston, 4  John.  Ch.  (N.  Y.)  144  Gil- 
lespie V.  Moon.  2  id.  585;  also.  The 
Hiram,  1  Wheat.  (U.  S.)  444;  Hunt 
V.  Eousmanier,  8  Wheat.  (U.  S.) 
211;  Hogan  v.  Delaware  Ins.  Co.,  1 
Wash.  (U.  S.  C.  C.)  422;  Rosevelt  v. 
Fulton,   2   Cow.    (N.  Y.)    129;   Patti- 


M 


Evidence. 


[Chap.  2. 


terfere,  unless  it  is  clearly  convinced  bv  the  most  satisfactory  evi- 
dence, first,  that  the  mistake  complained  of  really  exists,  and  next, 


son  V.  Hull,  id.  747 ;  Wesley  v. 
Thomas,  G  H.  &  J.  (Md.)  24;  New- 
som  V.  Buflferlou,  1  Dev.  Eq.  379; 
Gower  v.  Sterner,  2  Whart.  (Penn.) 
75,  79;  Abbe  v.  Goodwin,  7  Conn.  377. 
But  see  Westbrook  v.  Harbeson,  2 
McCord  Ch.  (S.  C.)  112;  Elder  v. 
Elder,  10  Me.  80;  Dwight  v.  Poraroy, 
17  Mass.  303;  Bradbury  v.  White,  4 
Me.  391;  Harrison  v.  Talbot,  2  Dana 
(Ky.),250. 

As  to  the  admissibility  of  parol  evi- 
dence, and  what  shall  constitute  part 
performance,  see  1  Story  Eq.  2l  et 
seq.  See,  also,  German  v.  Machin,  6 
Paige  (N.  Y.),  288;  Wetmore  v. 
White,  2  Cain  Cas.  in  Er.  87;  Hall  v. 
Hall,  2  McCord  Ch.  (S.  C.)  269;  Mil- 
ler V.  Hower,  2  Rawle  (Penn.),  53; 
Low  V.  Treadwell,  13  Me.  441; 
Brooks  V.  Wheelock,  11  Pick.  (Mass.) 
439;  Monahan  v.  Colgin.  4  Watts 
(Penn.),  436;  Ellis  v.  Ellis,  1  Dev. 
(N.  C.)   Eq.  341. 

See,  on  the  subject  of  bills  to  re- 
form agreements,  1  Story  Eq.  164  et 
^eq. ;  McMahon  v.  Spangler,  4  Rand. 
(Va.)  51;  Cook  v.  Preston,  2  Root, 
78 ;  Elmore  v.  Austin,  2  Root 
(Conn.),  415;  Parsons  v.  Hosmer,  2 
Root  (Conn.),  1;  Sanford  v.  Wash- 
burne,  id.  499;  Chadman  v.  Allen, 
Kirby  (Conn.),  399;  Lemaster  v. 
Buckhart,  2  Bibb  (Ky.),  29;  Colyer 
T.  McGee,  id.  321;  McCurdv  v. 
Breathitt,  5  Mon.  (Kv.)  534;  "Love 
V.  Cofer,  1  J.  J.  Mar.  (Ky.)  327; 
Moser  v.  Libenguth,  2  Rawle  Penn.), 
428;  Insko  v.  Proctor,  6  Mon.  (Ky.) 
316;  Parcels  v.  Gohegan,  2  J.  J. 
Mar.  (Ky. )  133;  Hunt  v.  Kousmani- 
«re,  1  Pet.  (U.  S.)  1;  8  Wheat.  (U. 
S.)  174;  Burdett  v.  Simms,  3  J.  J. 
Mar.  (Ky. )  190;  Harrison  v.  Jame- 
son, id.  232;  Hunt  v.  Freeman,  1 
Hamm.  (Ohio)  501;  Phoenix  Ins.  Co. 
V.  Gurnee,  1  Paige  (N.  Y.),  278; 
Eosevelt  v.  Fulton,  2  Cow.  (N.  Y.) 
129;  Chamberlain  v.  Thompson,  10 
Conn.  243 ;  Gillespie  v.  Moon,  2  John. 
€h.  (X.  Y.)  585;  Wheaton  v.  Whea- 
ton,  9  Conn.  96;  Young  v.  Craig,  2 
Bibb  (X.Y.),270:  Smith  v.  Smith,  4 
id.  81  ;  Newsom  v.  Bufferlou,  1  Dev. 
Eq.  (X.  C.)  379;  Gower  v.  Sterner, 
2  Whart.  (Penn.)  75;  Dalzell  v.  Tim- 


rod,  1  Dess.  Eq.  (S.  C.)  339;  Holmes 
V.  Simmons,  3  Dess.  Eq.  (S.  C.)  149. 
See,  also,  the  cases  post  in  these 
notes,   relative  to  wills. 

In  an  action  brought  to  reform  a 
written  instrument,  e.  g.  a  bond,  the 
consideration  of  which  proceeds  from 
a  third  party  acting  for  the  obligee, 
the  latter  is  entitled  to  a  decree  re- 
forming the  instrument  on  showing, 
fiist,  a  plain  mistake,  clearly  made 
out  by  satisfactory  proofs ;  and,  sec- 
ond, that  the  part  omitted  or  inserted 
was  so  omitted  or  inserted  contrary 
to  the  intent  of  both  parties,  and 
under  a  mutual  mistake.  Nevins  v. 
Dunlop,  33  N.  Y.  676.  Mr.  Justice 
Beown,  in  delivering  the  opinion  of 
the  court,  adopts  the  language  of 
Chief  Justice  Spencer,  in  Lyman  v. 
The  Utica  Ins.  Co.,  17  John,  (N.  Y.) 
373:  "It  is  not  enough,  in  cases  of 
this  kind,  to  show  the  sense  and  in- 
tention of  one  of  the  parties  to  the 
contract.  It  must  be  shown  incon- 
troA'«rtibly  that  the  sense  and  inten- 
tion of  the  other  party  concurred  in 
it;  in  other  words,  it  must  be  proved 
that  they  both  understood  the  con- 
tract as  it  is  alleged  it  ought  to  have 
been,  and  in  fact  it  was,  but  for  the 
mistake.  It  would  be  the  height  of 
injustice  to  alter  a  contract  on  the 
ground  of  mistake,  when  the  mistake 
arises  from  misconception  of  one  of 
the  parties  in  consequence  of  his  im- 
perfect explanation  of  his  intentions. 
If  it  be  clearly  shown  that  the  inten- 
tion of  one  of  the  parties  is  mistaken 
and  misrepresented  by  the  written 
contract,  that  cannot  avail  unless  it 
be  further  shown  that  the  other 
party  agreed  to  it  in  the  same  way, 
and  that  the  intention  of  both  of 
them  was  by  mistake  misrepresented 
by  the  written  contract." 

See,  also,  1  Story  Eq.  160;  also  El- 
der V.  Elder,  10  Me.  80;  Hodgson  v. 
Hancock,  1  Y.'  &  Jer.  317;  United 
States  V.  Monroe,  5  Mas.  (U.  S.) 
571;      Phoenix    Ins.    Co.    v.    Gurnee, 

1  Paige  (N.  Y.),  278;  Watkins  v. 
Stockett,  6  H.  &  J.  (Md.)  435; 
Graves  v.  The  Boston  Marine  Ins.  Co., 

2  Cranch  (U.  S.)  419;  Dupree  v. 
McDonald,  4  Dess.  Eq.    (S.   C.)    209; 


Sec.  27.] 


Parol  Evidence  as  to  Writings. 


97 


that  it  is  such  a  mistake  as  ought  to  be  corrected.^  A  plaintiff  may 
i-eek  the  relief  in  equity  by  tiling  a  bill  either  to  reform  the  writ- 
ing, in  which  event  it  will  be  necessary  to  satisfy  the  court  that 
there  was  a  mistake  on  both  sides/  or  to  rescind  the  instrument, 
in  which  case,  though  conclusive  proof  of  error  or  surprise  on  the 
plaintiff's  part  alone  will  suffice,*  it  must  appear  that  the  mis- 
take was  one  of  vital  importance.^  In  either  of  these  cases,  if  the 
defendant  by  his  answer  denies  the  case  as  set  up  by  the  plaintiff, 
and  the  latter  simply  relies  on  the  verbal  testimony  of  witnesses, 
and  has  no  documentary  evidence  to  adduce, — such,  for  instance, 
as  a  rough  draft  of  the  agreement,  the  written  instructions  for 
preparing  it,  or  the  like, — the  plaintiff's  position  will  be  well  nigh 
desperate,  though  even  here,  as  it  seems,  the  parol  evidence  may 
be  so  conclusive  in  its  character  as  to  justify  the  court  in  granting 
the  relief  prayed.®  A  defendant,  also,  against  whom  a  specific  per- 
formance of  a  written  agreement  is  sought,  may  insist  by  way  of 
answer  upon  the  mistake,  and  may  establish  its  existence  by  parol 
evidence,  because  he  may  rely  on  any  matter  which  shows  it  to  be 
inequitable  to  enforce  the  contract.^ 


Lyman  v.  The  United  Ins.  Co.,  2 
John.  Ch.  (N.  Y.)  630;  Gillespie  v. 
Moon,  id.  585;  Harris  v.  Dinkins.  4 
Dess.  Eq.  (S.  C.)  60;  Abbie  v.  Good- 
win, 7  Conn.  377. 

^  M.  of  Townsend  v.  Strangroom, 
6  Ves.  339;  Mortimer  v.  Shortall,  2 
Dru.  &  W.  371:  Gillespie  v.  Moon, 
2  John.  Ch.    (N.  Y.)    585. 

*  Tlie  mistake  of  one  party  alone  to 
a  deed  as  to  its  contents  is  not 
ground  for  reforming  it  in  equity. 
The  mistake  must  be  mutual.  For- 
ester V.  Van  Auken,  12  N.  D.  175,  96 
N.  W.  301 ;  Somerville  v.  Coppage 
(Md.,  1905),  61  A.  318. 

*  Mortimer  v.  Shortall,  2  Dru.  & 
W.  372. 

«  1  Story  Eq.  Jur.  §  144,  n.  A  lease 
of  water  rights  may  be  shown  never 
to  have  any  existence  by  evidence 
that  it  was  entered  into  under  a  mu- 
tual mistake  to  the  effect  that  the 
water  could  be  vised  in  manufactur- 
ing. Bedell  v.  Wilder,  65  Vt.  406, 
26  A.  589,  36  Am.  St.  Rep.  871. 
Where  the  agent  for  an  insurance 
company  was  shown  the  property  to 
be  insured  and  wrote  the  description 
of    it   in    the    application    which    the 


insured  signed,  the  latter  may  show 
in  an  action  on  the  policy  that  the 
description  in  the  policy  was  a  mis- 
description and  may  show  that  the 
property  intended  to  be  insured  was 
that  originally  pointed  out  to  the  de- 
fendant. Alabama  Mutual  Fire  In- 
surance Co.  V.  Minchener,  133  Ala. 
632,  32  So.  225.  In  a  suit  in  equity 
to  reform  a  deed  evidence  may  be  ad- 
mitted of  the  treasurer  of  the  grantor 
corporation  as  to  the  intention  of 
the  parties  in  making  the  deed  to 
show  that  an  obvious  mistake  had 
occurred.  Southern  Finishing  &  Ware- 
house Co.  V.  Ozment,  132  N.  C.  839, 
44  S.  E.  681.  In  a  bill  in  equity  to 
confirm  a  tax  title  evidence  will'  not 
be  received  to  show  that  the  taxes 
for  a  year  different  from  that  named 
in  the  tax  deed  were  really  sold. 
Bower  v.  Chess  &  Wvmand  Co.,  82 
Miss.  218,  35  So.  444.  * 

"  Mortimer  v.  Shortall.  2  Dru.  &  W. 
374;  Alexander  v.  Crosbie,  R.  temp. 
Sugden,  150;  ,  M.  of  Townsend  v. 
Strangroom,  6  Ves.  339 :  Gillespie  v. 
Moon,  2  John.  Ch.   (N.  Y. )   600. 

'  Davies  v.  Fitton,  2  Dr.  &  W.  232 ; 
M.    of    Townsend    v.    Strangroom,    6 


98 


EviDEIS'CE. 


[Cliap.  2. 


Sec.  28.  Waiver,  Alteration,  or  Discharge  of  Contract. 

It  is  ahvays  competent  for  a  party  to  a  written  contract  ta^ 
show  that  it  was  subsequently  to  the  execution  of  a  written  con- 
tract, abandoned  b}'  the  parties  thereto,  either  in  whole  or  in  part, 
or  that  some  of  its  provisions  were  waived,^  and  this  applies  as  well 
to  contracts  under  seal  as  to  simple  contracts,"  and  it  has  been  held 
that  even  the  waiver  of  a  condition  of  a  deed  may  be  shown  by 
parol.^  As  to  the  effect  of  a  waiver  by  parol  of  the  conditions  of 
an  instrument  under  seal,  and  the  substitution  of  new  parol  con- 
ditions, it  may  be  said  that,  if  the  entire  contract  under  seal  is  not 
abandoned,  the  whole,  by  such  a  change,  is  reduced  to  the  character 
of  a  simple  contract,  so  that  assumpsit,  instead  of  debt  or  covenant, 
is  the  proper  remedy  thereon.*  The  time  for  the  performance  of 
a  contract,  whether  under  seal  or  not,  may  be  enlarged  by  parol,^ 
and  the  time  for  the  performance  of  the  condition  of  a  bond  may 
also  be  so  enlareed.^    The  parties  to  a  contract  for  the  purchase  of 


Ves.  328.  Parol  evidence  is  admissi- 
ble to  show  that  an  agreement  to 
convey  land  in  escrow  was  given 
nnder  a  mutual  mistake.  Beach  v. 
Bellwood    (Va.,  1905),  51  S.  E.  184. 

^Harris  v.  Murphv,  119  N.  C.  34, 
25  S.  E.  708,  56  Am.  St.  Rep.  656, 
and  note  page  659;  Putnam  Foundry 
&  Machine  Co.  v.  Canileld.  25  R.  1. 
548.  56  A.  1033:  Raffensberger  v. 
Collinson,  28  Penn.  St.  426;  Willey 
V.  Hall,  8  Iowa.  62:   Chiles  v.  Jones, 

3  B.  Mon.    (Ky.)   51:   Bryan  v.  Hunt, 

4  Sneed  (Tenn.).  543:  Wood  v. 
Perrv,  1  Barb.    (X.  Y.)    114. 

=  Flinn  v.  McKean,  6  Duer  (X.  Y.), 
203;  Leathe  v.  Bullard,  8  Gray 
(Mass.),  545:  Lefevre  v.  Lefevre,  4 
S.  &.  R.  (Penn.)  241;  Cringum  v. 
Xicholson,  1  H.  &  M.    (Va.)   435. 

^Leathe  v.  Bullard.  ante.  In 
Whitcher  v.  Shattuck.  3  Allen 
(Mass.),  318,  it  was  held  that  under 
a  chattel  mortgage,  reserving  to  the 
mortgagor  possession  and  control  of 
the  goods  until  after  default,  it  may 
be  shown  by  parol  that  the  mort- 
gagor waived  this  right. 

^Hvdeville  Co.  v.  Eagle  R.  R.  & 
Slate' Co.,  44  Vt.  395. 

Thus,  in  a  Massachusetts  case, 
Munroe  v.  Perkins,  9  Pick.  (Mass.), 
298,    an     action     of     assumpsit    was 


brought  for  work  and  labor,  etc.,  and 
the  defendant  set  up  in  defense  that 
the  whole  took  place  under  a  special 
contract  under  seal,  which  was  pro- 
duced. The  plaintiff  showed  that  be- 
ing unable  to  go  on  after  having 
partly  performed  his  contract,  with- 
out material  loss,  he  refused  to  pro- 
ceed, but  that  the  defendant,  by  pa- 
rol, thereupon  promised  him  that  if 
he  would  go  on  he  should  be  paid  for 
the  labor,  etc.,  and  should  not  suffer, 
and  upon  the  faith  of  such  parol 
promise  he  went  on  and  performed 
the  labor,  etc.,  for  which  he  sought 
to  recover.  See,  also,  to  the  same  ef- 
fect, Lattemore  v.  Hurson,  14  John. 
Cis.  Y.)  330;  Allen  v.  Jaquish,  12 
Wend.   (X.  Y.)   628. 

=  Friess  v.  Rider,  24  N.  Y.  367. 

^  Stone  V.  Sprague,  20  Barb.  (X. 
Y. )  5,  9:  Esmond  v.  Van  Benschoten, 
2  id.  366;  Xeil  v.  Tilman,  1  Bailey 
(S.   C),   538   n. 

Thus,  in  a  Xew  York  case,  Flem- 
ing V.  Gilbert,  3  John.  X.  Y.  328,  an 
action  was  brought  upon  a  bond  con- 
ditioned that  the  defendant,  by  a 
given  day,  should  procure  and  deliver 
to  the  plaintiff  a  certain  bond  and 
mortgage,  and  discharge  the  same  of 
record.  The  defendant  did  procure 
the   bond   and  mortgage,   and   offered- 


Sec.  28.] 


Parol  Evidence  as  to  Writings. 


99 


real  estate  may  wave  its  terms  by  parol  and  annul  or  extingiush 
its  provision.^  without  writing.'  So  if  a  contract  provides  for  de- 
livering in  fifty  pound  boxes,  a  subsequent  agreement  to  deliver  m 
lots  of  one  hundred  fifty  pound  boxes  each  may  be  proved.  Where 
a  contract  provides  for  payment  in  these  words,  ''sight  draft,  with 
bill  of  lading  attached,"  it  is  competent  to  prove  a  subsequent  oral 
agreement  as  to  whom  the  draft  should  be  drawn  upon  and  where 
it  should  be  presented.^  But  where  an  express  company  on  receipt 
of  goods  gives,  a  shipping  receipt  expressing  that  the  company  is 
not  to  be^-esponsible  for  the  negligence  of  connecting  carriers  the 

them  to  the  plaintiff,  proposing  to  do 

whatever    else    he    required    to    dis- 
charge   the    mortgage    of    record;    but 

the  plaintiff,  not  knowing  what  was 

necessary,   agreed   by   parol   to  waive 

a  literal  performance  in  this  respect, 

if    the    defendant    would    do    another 

thing,  which  he  afterwards  did ;  held, 

that    evidence    of    the    parol    waiver, 

etc     was  admissible,  and  amounted  to 

a  defense.     The  court  went  upon  the 

ground,  that  he  who  prevents  a  thing 

bein"  done  shall  not  avail  himself  of 

the     non-performance     he     has     occa- 
sioned.     Where    the    condition    of    a 

bond  was  to  raise  a  mill,  the  obligor 
came  to  the  obligee  and  told  him  ev- 
erything was  ready  to  erect  the  miU, 
and  asked   him  when  he  would  have 
him  come  and  put  it  up ;   the  obligee 
answered,  that  he  would  not  have  it, 
and  discharged  him  entirely  of  erert- 
in<^  the  mill,  and  that  was  held  suffi- 
cient   to   excuse    him    from    the    per- 
formance.    Fleming  v.  Gilbert,  swpm, 
per  Thompson,  J.,  citing  1  RoU  Abr. 
4.53    pi.  5,  Year-Book,  2  Hen.  VI,  37. 
In  an  English  case,  Radcliffe  v.  Pem- 
berton,     1     Esq.     35,    Lord     Kenyon 
held,  that  to  an  action  of  covenant  on 
a   charter   party,   for    the   demurrage 
which   was   stipulated   in   it,   the   de- 
fendant  might   plead   that   the   cove- 
nantee,   who    was    the     master    and 
owner  of  the  ship,  verbally  permitted 
the   delay,    and   agreed   not   to    exact 
any  demurrage,  but  waived  all  claim 
to    it.     Thresh    v.   Rake,    id.    o3.     bo 
where  the  plaintiff  sued  on  a  breach 
of  covenant,  for  not  giving  a  deed,  it 
was   held    a    good    plea,    and   the   de- 
fendant would  have  given  a  deed  at 
the  time  stipulated,  but  the  plaintiiT 


obiected,  and  said  when  he  wished  the 
deed  he  would  apply  for  it.  Baker  v. 
Whiteside,  1  Breese   (111.),  132. 

In  a  New  York  case,  Dearborn  v. 
Cross,  7  Cow.   (N.  Y.)   48,  the  action 
was  on  notes,  payable  in  specific  ar- 
ticles.    It   appeared  that  the   consid- 
eration  of   the   notes  was   a  bond  of 
the  plaintiff,  by  which  the  latter  ob- 
lioated     himself     to     convey     certain 
premises   to    the   former;   that,   by   a 
subsequent  parol  agreement,  the  par- 
ties   had    stipulated    to    rescind    the 
contract  of  sale:   and  that  the  plain- 
tiff    pursuant    to    this    arrangement, 
had    re-entered     upon    the    premises, 
and  finally  sold  them  to  another  indi- 
vidual,    the  court  held,  that  though 
the   bond  was  not  canceled  or   given 
up,  or  anv  of  the  papers  changed,  yet 
by  the  parol  agreement,  and  the  acts 
of  the  parties  under  it,  the  bond  ^yas 
discharged,  and,  therefore,  no  action 
would  lie  on  the  notes.       In  a  later 
case,   Barnard  v.   Darling.    U    Wend. 
(N     Y  )     22     the    defendants    being 
sued    on    a   bond   given    by   them   as 
sureties   of   a   deputy   sheriff,   set   up 
by  wav  of  plea,  a  parol  agreement  of 
the    sheriff    that    he    loould    release 
them.     No  consideration  was  alleged 
for     the     agreement,     and     this     tire 
court,    on    demurrer,    adjudged    fatal 
to    the    plea.        They,    however,    inti- 
mated an  opinion,  that  a  parol  agree- 
ment,    executory     in     its     character, 
could  not  discharge  a  covenant 

'  Wadge  V.  Kittleson,  12  N.  D.  4o-, 
97  N    W.  856,  859.  ^ 

8  Town  V.  Jepson,  133  Mich.  6/3,  9a 

'sTown  V.  Jepson,  133  Mich.  673,  95 
N.  W.  742. 


100 


Evidence. 


[Ciiap.  2. 


receipt  constitutes  the  contract  and  cannot  be  varied  by  parol  evi- 
dence of  a  subsequent  agreement  to  deliver  the  goods  within  a, cer- 
tain time  when  the  delay  results  from  the  negligence  of  a  connecting 
carrier/**  Parol  evidence  is  admissible  to  show  that  a  contract  has 
been  satisfied  and  complied  with  prior  to  its  execution. ^^ 


Sec.  29.  To  show  Warranty. 

The  rule  is,  that  where  a  contract  for  the  sale  of  property  has 
been  reduced  to  writing,  and  is  evidently  complete  in.  itself,  it  is 
not  competent  for  the  parties  to  engraft  new  terms  or  conditions 
thereon  in  the  form  of  a  warranty;^  but  where  the  contract  as 
expressed  in  the  writing  is  manifestly  incomplete,  parol  evidence 
is  ?.dmissible  to  show  a  contemporaneous  agreement  that  the  2>rop-  1. 
erty  should  be  of  a  certain  quality,  kind  or  quantity.^     When  the 


^"  Sloman  v.  National  Express  Cc, 
134  Mich.  16,  95  N.  W.  999. 

"  A  certain  memorandum  for  the 
sale  of  "good  merchantable  hay"  was 
held  to  be  subject  to  evidence  that  it 
referred  to  certain  specific  hay  al- 
ready examined  and  accepted  by  the 
buyer.  Henry  v.  Herschey  (Idaho, 
1904),  75  Pac.  2G6. 

'Mast  V.  Pearce,  58  Iowa,  579; 
Jolliif  V.  Collins,  20  Mo.  338; 
Lamb  v.  Crafts,  12  Met.  (Mass.) 
353;  Reed  v.  Wood,  9  Vt.  285; 
Shepherd  v.  Gilroy,  46  Iowa, 
193;  Mumford  v.  MePherson,  1 
John.  (N.  Y.)  414;  Van  Os- 
trand  v.  Reed,  1  Wend.  (N.  Y.)  424; 
McMullain  v.  Thomas,  43  Conn.  252; 
Rice  V.  Forsythe,  41  Md.  389;  Dean 
V.  Mason,  4  Conn.  428;  Salem,  &c., 
Co.  V.  Adams,  23  Pick.  (Mass.)  256; 
Boardman  v.  Spooner,  13  Allen 
(Mass.),  361;  Kain  v.  Old,  2  B.  &  C. 
627;  Spooks  v.  Messick,  65  N.  C. 
440;  The  Johnston  Co',  v.  Bartley,  81 
Ind.  406;  Lamb  v.  Crafts,  12  Met. 
(Mass.)  353;  Battens  v.  Sellers,  5  H. 
&  J.  (Md.)  117;  Froreich  v.  Gam- 
mon, 28  Minn.  476;  Wilson  v.  Marsh, 
1  John.  (N.  Y. )  503;  Whitmore  V. 
So.  Boston  Iron  Co.,  2  Allen  (Mass.), 
68 ;  Reed  v.  Wood,  9  Vt.  285 ;  Keller 
V.  Webb,  126  Mass.  393;  Frost  v. 
Blanchard.  97  ]VIass.  155;  Etheridge 
V.  Pulin.  72  N.  C.  213;  Naumberg  v. 
Young,  35  N.  J.  L.  331. 


-  Chapin  v.  Dobson,  78  N.  Y.  74; 
Scott  V.  Sweet,  2  G.  Green  (Iowa). 
224. 

The  rule  as  stated  was  held  in  the 
New  York  case  cited,  mite,  under  the 
following  facts:  The  parties  entered 
into  a  parol  agreement  that  the 
plaintiff  should  furnish  the  defendant 
with  certain  macliinery  at  a  specified 
price,  and  that  the  defendant  should 
accept  and  pay  for  the  same  in  a 
specified  manner,  and  that  the  plain- 
tiff should  guarantee  that  the  ma- 
chines should  do  the  defendant's 
work  satisfactorily.  The  agreement 
was  reduced  to  writing  and  signed, 
not  including  the  guaranty,  and  it 
was  held  that  parol  evidence  was  ad- 
missible to  add  the  guaranty.  The 
court  placed  its  decision  expressly 
upon  the  ground  that  the  agreement 
relating  to  the  guaranty  was  col- 
lateral, and  that  the  wxiting  was 
manifestly,  as  it  was  in  fact  found  to 
be,  incomplete.  The  court  predicated 
its  doctrine  upon  an  eai'ly  English 
case,  Jeffrey  v.  Walton,  1  Stark.  385, 
and  an  early  case  in  New  York,  Bat- 
temore  v.  Pierce,  3  Hill  (N.  Y. ),  171, 
and  so  far  as  the  doctrine  of  the  two 
cases  referred  to  is  concerned,  there 
can  be  no  question  as  to  their  accu- 
racy, as  in  neither  case  did  the  writ- 
ing purport  to  embrace  tbp  entire 
contract.  But  in  the  principal  case, 
Dobson  V.   Chapin,  ante,   the   writing 


Sec.  29.] 


Parol  Evidence  as  to  Writings. 


101 


writings  show  a  complete  legal  obligation  without  any  uncertainty 
as  to  its  object  and  extent  it  is  conclusively  presumed  that  the 
whole  agreement  of  the  parties  was  included  in  the  writings.  So 
evidence  of  the  preliminary  negotiations  is  not  admissible  to  add 


was     evidently     complete     and     was 
signed    by    both    parties.     There    was 
nothing  upon  the  face  of  the  contract 
from    which    a    presumption    that    it 
was   incomplete   could   be   drawn.     It 
is   true   that   the   referee  found   as   a 
fact   that   it   was    incomplete,   but    if 
this    circumstance    is    to    furnish    a 
ground  for  the  admission  of  such  evi- 
dence, then  it  opens  the  way  for  its 
admission    in    every    case    where    the 
'jury    find    that    such    an    agreement 
teas   in  fact    made,   and   it   does   not 
conflict    loith    or   antagonize    any    of 
tlie  stipulations  in   the  written   con- 
tract.   The  court  says :  "  The  written 
contract  and  the  guaranty  do  not  re- 
late    to     the     same     subject-matter. 
The  contract  is  limited  to  a  particu- 
lar machine,  as  such,  the  guaranty  is 
limited   to   the    capacity   of    the    ma.- 
.chpne."        But    the    court    seems    to 
have  lost  sight  of  the  fact  that  both 
were  a  part  of  an  entire  contract,  and 
that  there  was  no  pretense   that  two 
separate    and    distinct    contracts    re- 
lating   to    the    matter    loere    entered 
into,  nor  was  there  any  pretense  that 
the  omission  of  the  guaranty  from  the 
writing    ^cas    brouglut    about    by    the 
fraud   of   the  piaintiffs,  but  that  the 
omission,  if  not'  intended  by  the  par- 
ties, was  the  result  of  accident  or  a 
mistake,  and  it  seems  to  us  that  the 
only   remedy    open    to   the   defendant 
was  to  seek  a  reformation  of  the  con- 
tract upon,  that  ground,  and  that  the 
doctrine    held    by    the    court    is    con- 
trary to  the  general  drift  of  author- 
ity, and  carried  to  its  legitimate  se- 
quence  would    result   in   a  disastrous 
relaxation  of  a  highly  salutary   rule 
of    evidence.       There    is    a    class    of 
cases     where     evidence     of     a     parol 
agreement,  contemporaneous  with  the 
written      agreement,      is      admissible 
when  the  parol  agreement  loas  an  in- 
ducement    to     the    execution    of    the 
written   agreement.     Pierce  v.   Wood- 
ward, 6  Pick.    (Mass.)    206;    Shugart 
v.   Moore,   78   Penn.   St.   4(i9;   Pamel- 
ton  Coal  Co.  v.  McShain,  75  id.  238. 


But  this  case  does  not  seem  to  come 
within  the  rule  of  these  cases,  or  have 
any  of  the  essential  features  requisite 
to  bring  it  within  the  exception  upon 
this  ground.  In  an  English  case, 
Kain  v.  Old,  6  B.  &  C.  G27,  the  nile 
which  is  universally  acted  upon,  that 
when  the  contract  is  finally  consum- 
mated, ail  prior  conversations  and 
negotiations  are  merged  therein,  was 
recognized.  In  that  case,  the  bill  of 
sale  in  the  usual  form  contained  no 
warranty  that  the  vessel  sold  was 
copper-fastened.  There  had  been  a 
previous  written  representation  by 
the  vendor  that  she  was  copper-fas- 
tened. The  court  held  that  this 
prior  representation  formed  no  part 
of  the  contract  and  was  not  a  war- 
ranty. "  Where,"  said  Abbott,  C. 
J.,  "  the  whole  matter  passes  in  pir- 
cel,  all  that  passes  may  sometimes  be 
taken  together  as  forming  parcel  of 
the  contract,  though  not  always,  be- 
cause matter  talked  of  at  the  com- 
mencement of  a  bargain  may  be  ex- 
cluded by  the  language  used  at  its 
termination. .  But  if  a  contract  be  itt 
the  end  reduced  to  loriting,  nothing 
lohich  is  not  found  in  loriting  can  be 
considered  as  a  part  of  the  contract. 
A  matter  antecedent  to  and  dehors 
the  writing  may  in  some  cases  be  re- 
ceived in  evidence,  as  showing  the  in- 
ducement to  the  contract,  such  as  a 
representation  of  some  particular 
quality  or  incident  to  the  thing  sold; 
but  the  buyer  is  not  at  liberty  to 
show  that  the  seller,  by  some  fraud, 
prevented  Inm  front  discovering  a 
fault  which  he,  the  seller,  knew  to 
exist." 

"The  only  safe  criterion,"  says 
Depue,  J.,  in  Naumberg  v.  Young, 
35  N.  J.  L.  331,  in  a  very  able  nnd 
exhaustive  opinion,  "  of  the  complete- 
ness of  a  written  contract  as  a  full 
expression  of  tlie  terms  of  a.  party's 
agreement,  is  the  contract  ilself. 
When  the  parties  have  deliberately 
put  their  engagements  into  writing  in 
such  language  as  imports  a  legal  ob- 


102 


Evidence. 


[Chap.  2. 


a  warranty  to  a  contract  of  purchase,^  or  any  unambiguous  con- 
tract.* So  where  a  contract  is  evidenced  by  a  written  order  con- 
taining no  reference  to  a  warranty  a  warranty  cannot  be  added 
by  implication  of  Law  or  parol  proof.^  Parol  evidence  is  inadmis- 
sible to  add  to  a  contract  for  a  refrigerator  a  contemporaneous 
parol  warranty  as  to  its  capacity,''  or  to  show  that  tlie  assignor  of 
a  mortgage  verbally  warranted  the  mortgage  to  be  a  good  lien  on 
the  property  in  the  absence  of  fraud  or  deceit.^  But  where  the 
contract  is  evidently  incomplete,  being  merely  an  informal  bill  or 
receipt  and  not  intended  to  embrace  the  entire  contract,  parol 
evidence  of  a  warranty  of  the  goods  is  admissible.^     Thus  where 


ligation,  it  is  only  reasonable  to  pre- 
sume that  they  have  introduced  into 
the  written  instrument  every  ma- 
terial term  and  circumstance;  and 
consequently  all  parol  testimony  of 
conversations  held  between  the  par- 
ties, or  of  declarations  made  by  either 
of  them,  whether  before  or  after  the 
time  of  the  completion  of  the  con- 
tract, will  be  rejected."  Crane  v. 
Elizabeth,&c.,  Ass'n,  29  N.  J.  L.  305; 
Powell  v.  Edmunds,  12  East,  6;  But- 
ton V.  Gerrish,  9  Cush.  (Mass.)  89; 
Sheckles  v.  Sax,  1  E.  D.  S.  (N.  Y. 
C.  P.)  253;  Hei  v.  Heller,  53  Wis. 
415.  In  the  Massachusetts  case, 
Button  V.  Gerrish  ante,  it  was 
attempted  to  engraft  upon  a  lease 
a  parol  warranty  by  the  land- 
lord that  the  premises  were  fit  for 
the  purpose  for  which  they  were  let; 
but  the  evidence  was  rejected,  Shaw, 
C.  J.,  saying:  "  If  there  was  any 
warranty,  express  or  implied,  it  was 
a  part  of  the  contract  of  hiring  and 
not  something  separate  and  inde- 
pendent, and  must  therefore  be  found 
in  one  of  the  items  or  terms  of  that 
contract."  So  where  a  lease  is  si- 
lent as  to  repairs,  it  cannot  be  shown 
by  parol  that  the  landlord  agreed  to 
make  the  repairs.  3  Starkie  Ev. 
1007.  See  opinion  of  Ghalson,  J., 
in  Howard  v.  Thomas.  12  Ohio  St. 
201.  In  a  New  York  case,  Wilson  v. 
Deen,  74  N.Y.  531,  there  was  a  lease 
of  a  house  and  furniture,  and  a 
schedule  of  the  furniture  was  an- 
nexed to  the  lease.  In  an  action  to 
cancel    the    lease,   oral    testimony    to 


show  that  the  lessor  agreed  that  cer-  ( 
tain  deficiencies  in  the  furniture 
should  be  made  up,  was  rejected. 
Emery  v.  Perry,  17  L.  T.  U.  S.  152. 
In  an  Iowa  case.  Mast  v.  Pearce,  58 
Iowa,  579;  43  Am.  Rep.  125,  the  doc- 
trine of  the  New  York  case,  Chapin  v. 
Dobson,  78  N.  Y.  34,  34  Aiu.  Eep. 
512,  was  expressly  repudiated  as 
being  unsound  and  against  authority. 

^  Telluride  Power  Transmission  Co.    ' 
v.   Crane  Co.,  208   111.   218,   70  X.   E. 
R.   319;   DeWitt  v.  Berry,   134  U.   S. 
306,  10  S.  C.  536. 

*  Neale  v.  American  Electric  Vehicle 
Co.,  186  Mass.  303,  71  N.  E.  566. 

°  Rollins  Engine  Co.  v.  Eastern 
Forge  Co.   (N.  H.,  1904),  59  A.  382. 

"McCrav  R.  &  C.  S.  Co.  v.  Woods, 
99  Mich.  209,  58  N.  W.  320,  41  Am. 
St.  R«p.  599. 

'Nallv  V.  Long,  71  Md.  585,  18  A. 
811,   17  "Am.   St.  Rep.  547. 

'  Henson  v.  Henderson,  21  N.  H. 
224;  Perrins  v.  Cooley,  39  N.  J.  L. 
449;  Hazard  v.  Loving,  19  Cush.. 
(Mass.)  267;  Henshaw  v.  Robbins,  3 
Met.  (Mass.)  136;  Bradford  v. 
Manlv,  13  Mass.  139;  Williams  v. 
Shafford,  8  Pick.  (Mass.)  250; 
Schenck  v.  Saunders,  13  Gray 
(Mass.),  37;  Wallace  v.  Rogers,  2  N. 
H.  506;  Bushtel  v.  The  Mason  Lum- 
ber Co.,  1  Flip.  (U.  S.  C.  C.)  640; 
Foot  v.  Bentley,  44  N.  Y.  166:  Hil- 
dreth  v.  O'Brien,  10  Allen  (Mass.), 
144;  Frost  v.  Blanchard.  10  id.  155; 
Fletcher  v.  Willard,  14  Pick.  (Mass.) 
464;  Stacy  v.  Kemp.  97  Mass.  168; 
Atwater  v.  Clancv,   107   id.  369. 


Sec.  29.]  Parol  Evidence  as  to  Writings. 


103 


a  contract  is  contained  in  a  letter  ordering  a  certain  engine  spec- 
ified for  a  certain  price  and  there  is  no  formal  contract  a  war- 
ranty can  be  proved  by  parol.^    Also  where  at  the  time  a  machine 
is  ordered  to  be  constructed  a  memorandum  of  the  order  is  signed 
by  the  prospective  buyer  it  is  held  that  an  oral  warranty  of^  the 
capacity  of  the  machine  made  at  the  time  of  the  signing  of  the 
order  may  be  proved  by  parol  as  the  note  appears  to  be  incomplete 
and  does  not  purport  to  embrace  the  entire  contract.^"    If  a  mort- 
gagee agrees  orally  that  in  consideration  of  the  payment  to  him  of 
the  purchase  price  of  a  deed  by  the  mortgagor  to  the  purchaser  of 
a  portion  of  the  land  covered  by  the  mortgage  that  he  will  re- 
lease the  land  from  his  mortgage  and  save  the  purchaser  hannless 
from   the  lien   of  a   certain  judgment   this   agreement  may   be 
proved. -^^ 


In  one  case  the  plaintiff  purchased 
a  horse  of  the  defendant,  and  received 
from  him  a  memorandum  of  purchase 
in   writing.      The   plaintiff   said   that 
when  he  treated  for  the  purchase  of 
the  horse  tlie  defendant  said  that  if 
he  did  not  work  well  and  go  quietly 
in   spare   harness   the   plaintiff   could 
send  him  back  and  have  his  money  re- 
turned,  and  after  some   further  talk 
the  plaintiff  bought  the  horse.       The 
memorandum    of    sale    contained    no 
mention  of  the  warranty.     The  horse 
proved  to  be  vicious  and  unruly,  and 
the   plaintiff  took   him   back  and  de- 
manded a  return  of  his  mone}^       The 
defendant   insisted   that  the   plaintiff 
was   concluded   by   the   writing   from 
showing   the   warranty,    but   the   evi- 
dence was  admitted  and  the  plaintiff 
had   a   verdict   which   was   sustained, 
Lord    Abinger,    C.    B.,    saying:      "Tf 
there    has    been    a    parol    agreement, 
which   is   afterwards    reduced   by  the 
parties     into    writing,    that    writing 
alone  must  be  looked  to  to  ascertain 
the   terms   of   the   contract :    but   the 
principle  does  not  apply  here ;    there 
was  no  evidence  of  any  agreement  by 
the  plaintiff  that  the  whole  contract 
should  be  reduced  into  writing  by  the 
defendant ;   the  contract  is   first  con- 
cluded  by   parol,  and   afterwards  the 
paper  is  drawn  up,  which  appears  to 
have  been  meant  merely  as  a  memor- 


andum of  the  transaction,  or   an   in- 
formal receipt  for  the  money,  not  con- 
taining the  terms  of  the  contract  it- 
self."    Where  a  bill  of  parcels  shows 
merely  a  sale  of  "  cloves,"  parol  evi- 
dence is  admissible  to  show  what  kind 
of  cloves  were  exhibited  as  a   sample 
at  the  time  of  sale.    Bradford  v.  Man- 
ly, 13  Mass.  1.39.     So  where  the  ven- 
dor,  in  a   written   agreement,  agreed 
to  ship  to  a  person  a  certain  quantity 
of  "  good,  fine  wine,"  it  was  held  that 
parol     evidence    was      admissible     to 
show  the  actual  terms  of  the  sale  and 
that   the   wine   shipped   was   that   se- 
lected by  the  person  liimself.     Hogins 
v.    Plympton.    11     Pick.     (Mass.)    97. 
But   where   the   goods   sold   are   of  a 
specified   kind,   parol   evidence   is   not 
admissible   to   show   that   shortly   be- 
fore   the    sale     the    vendee   inspected 
particular  goods  in  the  vendor's  pos- 
session and  that  those  were  the  goods 
referred  to  in  the  contract.     Watson- 
town    Car    Manufactory    v.    Elensport 
Lumber  Co.,  99  Penn.   St.   60.5. 

'  Puget  Sound  Iron  &  Steel  Works 
v.  Clemmons,  32  Wash.  36,  72  Pac. 
465. 

"•Aultman,  Miller  &  Co.  v.  Clif- 
ford, 55  Minn.  159.  56  N.  W.  593,  43 
Am.  St.  Rep.  478. 

"Peterson  v.  Creason  (Ore.  1905), 
81  Pac.  574. 


104  EviDEOsrcE.  [Chap.  2, 

Sec.  30.  To  show  that  Writing  apparently  absolute,  is  a  Security 
or  Trust  Instrument. 

Parol  evidence  is  admissible  especially  in  a  court  of  equity  to 
show  that  a  writing  which,  upon  its  face,  is  apparently  absolute, 
was  intended  only  as  a  security,^  as,  that  a  deed,  apparently  ab- 
solute, was.  only  intended  as  a  mortgage  f  and  the  same  rule  pre- 
vails as  to  a  conveyance  of  personal  property,^  or  to  the  assign- 
ment of  a  mortgage.^  An  assignment  of  a  claim  absolute  on  its- 
face,^  or  of  a  leasehold  interest  may  be  shown  by  parol  to  be  for 
security  only.^  Certificates  of  stock  absolute  on  their  face  may 
be  shown  to  be  held  only  as  security  for  a  debt  or  loan.^  A  bill  of 
sale  may  be  shown  by  parol  proof  to  be  a  chattel  mortage,^  and 
the  same  is  true  as  to  any  transfer  of  personal  property.^  So  parol 
evidence  is  competent  to  show  that  the  transfer  of  personal  prop- 
erty by  a  conveyance  absolute  in  form  was  in  trust  for  the  as- 
signor.^" Parol  evidence  is  admissible  to  show  that  a  note  and 
mortgage  on  their  face  absolute  were  given  merely  as  collateral 
security  for  a  certain  running  account.^^  Parol  evidence  has,  how- 
ever, been  held  inadmissible  to  show  that  title  in  a  sale  absolute 
on  its  face  was  to  remain  in  the  seller  until  payment  of  the  price.^^ 
But  as  to  deeds,  it  may  be  said  that  except  in  those  States  where^ 
by  statute,  courts  of  law  are  endowed  with  equity  powers,  parol 
evidence  is  not  admissible  in  courts  of  law  to  show  that  a  deed 

'  Fletcher     v.     Willard,     14     Pick.  ^  Davis  v.  Crookston  Water  Works, 

(Mass.)    464;    Caswell    v.    Keith,    12  etc.  Co.,  57  Minn.  402,  59  N.  W.  482; 

Gray    (Mass.),  351.     In  those   States  47  Am.  St.  Rep.  622. 

where   equity    powers    are    conferred  "Gross   v.    Heckert,    120   Wis.    314, 

upon  courts   of  law,   the  latter  may,  97  N.  W.  952. 

in  an   action   of  law,  in   the  exercise  ^  Burgess    v.    Seligman,    107    U.    S. 

of  its  equity  powers,  declare  a  deed,  20;  Ginz  v.  Stumph,  73  Ind.  209. 

absolute   on   its   face,    to   be   a   mort-  *  Rogers  v.  Nidiffer,  Ind.  Territory, 

gage,   and   parol   evidence  is   admissi-  82  S.  W.  673;  Howard  v.  Odell,  1  Al- 

ble  to  establish  the  fact.     Stinchfield  len    (Mass.),  85;   Blanchard  v.  Fear- 

v.  Millikin,  71  Me.  567;   Dispande  v.  ing,  4  Allen   (Mass.),  118. 

Walbridge,  15  N.  Y.  374.  "Hazard      v.      Leving,      10      Cush. 

'Brewster   v.   Davis,   56    Tex.    478.  (Mass.)    267;    CasweU   v.    Keith,    12 

Especially     in     equity,    where    these  ray   (Mass.),  351. 

questions  are  usually  raised.     Camp-  ^"Martin  v.  Martin,  43  Ore.  118,  72 

bell   V.     Dearborn,     109     Mass.     130;  Pac.  639. 

Hassan    v.    Barrett,    115    Mass.    257;  "  Lippincott    v.    Lowrie,    119    Wis. 

Maori   v.  Albro,    129   Mass.    9;    Budd  573,  97  N.  W.  179. 

V.  Van  Orden.  33  N.  J.  Eq.  143;  Hunt  "  Feld  v.  Stewart,  78  Miss.  187,  28 

v.  Middleworth,  44  Mich.  448.  So.  819;   Finnigan  v.  Shaw.  184  Mass., 

=  Newton  v.  Fay,  10  Allen   (Mass.),  112,  68  N.  E.  R.  35,  where  sale  note 

505.  set  out  absolute  contract. 

*Pond  v.  Eddy,  118  Mass.  113. 


Sec.  30.]  Parol  Evidence  as  to  Writings.  105 

absolute  on  its  face  was  intended  as  a  trust  or  as  a  mortage.  In 
reference  to  the  admission  of  such  evidence  in  equity  for  the 
purpose  of  changing  a  conveyance  apparently  absolute  into  a  mort- 
gage, it  is  clear  that  it  can  only  be  done  upon  some  ground  which 
will  authorize  an  inquiry  as  to  the  real  intention,  independent  of 
the  one  expressed  in  the  writing.  But  how  far  can  this  inquiry 
go  i  Is  it  limited  to  the  ascertainment  of  what  the  instrument 
would  have  expressed,  had  it  not  been  for  some  mistake  of  the 
scrivener,  some  fraud  of  the  opposite  party,  or  some  other  inter- 
vening circumstance,  constituting  in  itself  a  sufficient  ground  of 
relief  in  respect  to  written  instruments  generally  in  that  court  ? — 
or  may  the  court  conform  the  instrument  to  an  intent  not  only  un- 
expressed, but  which  the  parties,  trusting  at  the  time  to  each  other, 
did  not  mean  it  should  express  ?  Upon  these  and  various  other 
points,  the  cases  are  by  no  means  uniform. ^^  . 

It  may  be  well  to  say  that  the  Pennsylvania  cases,  and  cases 
arising  in  other  States  where  courts  at  law  possess  equity  powers, 
on  the  subject  of  oral  evidence,  in  respect  to  written  instruments, 
are  not  safe  guides  when  the  inquiry  is  simply  as  to  the  rule  at 
law.  In  the  main,  they  agree  in  their  results  with  the  decisions  in 
equity ;   but,   to  one  accustomed   to  see   the  distinction  between 

"As  to  the  general  doctrine,  see  2  Robards,  3  Monroe,  409;  Murphy  v. 
Story's  Eq.  287;  4  Kent's  Comm.  142.  Trigg,  1  id.  72;  Lindley  v.  Sharp,  7 
See  as  to  the  rule  in  England,  Max-  id.  252;  Trby  v.  Little,  4  Desw.  Eq. 
well  V.  Montacute,  1  Prec.  in  Ch.  (S.  C.)  422';  Todd  v.  Rivers'  Ex'rs, 
526;  Walker  v.  Walker,  2  Atk.  99;  1  id.  155;  Lloyd  v.  Ingliss,  id.  333; 
Joynes  v.  Strathani,  3  id.  389;  Ver-  Fitzpatrick  v.  Smith,  id.  345;  Hat- 
non  V.  Bethel,  2  Eden,  113;  Harris  v.  ter  v.  Etenaud,  2  id.  570;  and  see 
Horwell,  Gilb.  Eq.  Cas.  11;  Dixon  v.  Stinson,  v.  McKeown,  1  Hill  (S.  C.) 
Parker,  2  Ves.  Sr.  219;  in  the  United  387;  Ross  v.  Norvell,  1  Wash.  (Va.) 
States  Court,  Hughes  v.  Edwards,  9  14;  King  v.  Newman,  2  Munf.  (N. 
Wheat.  (U.  S.)  489;  New  York,  C.)  40;  Robertson  v.  Campbell,  2 
Marks  v.  Pell,  1  John.  Ch.  (N.  Y.)  Call  (Va.),  241;  Streator  v.  Jones, 
594;  Strong  v.  Stewart,  4  id.  167;  3  Hawks  (N.  C.),423;  1  Murph.  (N. 
James  v.  Johnson,  6  id.  417;  Clark  v.  C.)  449;  Dickenson  v.  Dickenson,  2 
Henry,  2  Cow.  (N.  Y.)  324;  Whit-  id.  279;  Jackson  v.  Blount,  2  Dev. 
tick  V.  Kane,  1  Paige  Ch.  (N.  Y.)  (N.  C.)  Eq.  555;  Anonymous,  2 
206;  Slee  v.  Manhattan  Co.,  id.  48;  Hayw.  (N.  C.)  26;  Watkins  v. 
Patchin  v.  Pierce,  12  Wend.  (N.  Y.)  Stockett,  6  H.  &  J.  (Md.)  435; 
64;  Washburn  v.  Merrills,  1  Day  Wesley  v.  Thomas,  id.  24:  Jones  v. 
(Conn.),  139;  Reading  v.  Weston,  8  Sluby,  5  H.  &  J.  (Md.)  372;  Hud- 
Conn.  177;  Dean  v.  Dean,  6  Conn.  son  v.  Isbell,  5  S.  &  P.  (Ala.)  67: 
285;  Brown  v.  Wright,  4  Yerg.  English  v.  Lane,  1  Port.  (Ala.)  328: 
(Tenn.)  57;  Ohio,  Miami  Exporting  Aborn  v.  Bennet,  2  Blackf.  (Ind.) 
Co.  V.  The  United  States  Bank,  1  101;  Wharf  v.  Howell,  5  Binn. 
Wright  (Ohio),  249;  Mercer  v.  Blair,  (Penn.)  499;  Thompson  v.  White,  1 
Litt.  Sel.  Cas.  (Ky.)  412;  Thomp-  Dall.  (Penn.)  426,  427. 
son  V.  Patton,  5  Litt.   74;      Lewis  v. 


106  Evidence.  [Chap.  2. 

<3hancerj  and  strict  legal  powers  preserved  in  some  way,  they  re- 
quire to  be  read  and  used  witli  more  than  ordinary  caution,  from 
the  fact  that,  while  the  proceedings  present  all  the  external  appear- 
.ance  of  a  suit  at  law,  the  judgment,  in  many  instances,  involves 
principles  peculiar  to  a  court  of  equity.  Thus,  judgment  will 
sometimes  be  rendered  for  the  plaintiff  in  the  action  of  ejectment, 
when  a  chancellor  would  enforce  a  performance  of  an  agreement 
for  the  land,  or  decree  a  conveyance.^^  Mistakes  and  frauds,  in 
respect  to  written  instruments,  may  be  shown,  in  actions  of  debt, 
assumpsit,  etc.,  brought  upon  them,  and  the  court  will  relieve  by 
acting  upon  them  precisely  as  if  the  intent  proved  aliunde  were 
Wpressed.^^  Various  other  peculiarities  arise  out  of  this  blending 
of  legal  forms  with  equitable  principles,  which  we  have  not  the 
space  to  refer  to  here.  It  is  there  said  that  "  the  jurisprudence 
of  these  States  now  is,  what  the  common  law  of  England  would 
have  been,  if  accidental  circumstances  had  not  caused  the  elevation 
of  the  Court  of  Chancery." 

The  right  of  a  creditor  to  show,  by  parol,  that  a  conveyance, 
executed  by  his  debtor,  is,  in  reality,  a  mortgage,  with  a  view  of 
establishing  that  it  was  given  to  screen  the  property  from  being 
seized  on  execution,  etc.,  has  never  been  denied.  Yet,  where  the 
intention  was  admitted  to  be  bona  fide,  and  no  gTOund  existed  for 
the  imputation  of  fraud,  the  fact  that  the  conveyance  was  a  mort- 
gage w^as  held  immaterial,  and  the  evidence  adduced  inadmissi- 
ble.^^' The  fact  of  the  consideration  being  paid,  or  not,  may  be 
material,  by  way  of  establishing  or  rebutting  fraud,  as  it  respects 

"Hawn  V.  Norris,  4  Binn.  (Penn  )  ner  v.  Imbrie,  6  id.  411;  Weaver  v. 
78;  Moody  v.  Van  Dyke,  id.  41;  Shyrock,  id.  262;  Shepherd  y.  Wat- 
Peebles  V.  Reeding,  8   S.'&  E.  491.  son,    1    W^atts    (Penn.),    36:   King   v. 

"  See  Moser  V.  Libenguth,  2  Rawle  Stubbs,    14    S.    &    R.     (Penn.)     206; 

(Penn.),    428;      Christine    v.    White-  Collam   v.   Hooker,   1   Rawle    (Penn.) 

Mil,   16   S.  &   R.    (Penn.)    98:   Ilult;^  108. 

V.   Wright,   id.   345;   Richart  v.   Beil-  "Stanton      v.      Commonwealth,      2 

deman,   17  id.  42;   Jordan  v.  Cooper,  Dana    (Ky.),  397;   Reed  v.  Jewett,  5 

3     id.     546;       Collom    v.    Hooker,     4  Me.  96;   Kelly  v.  Thompson,  7  Watts 

Rawle    (Penn.),    108;      Thompson   v.  (Penn.),    401;      New    England    ^lar. 

White,   1  Dall.    (Penn.)    426;  Mackev  Ins.   Co.  v.   Chandler,   16   Mass.   275; 

V.    Brownfield,    13    S.    &    R.     (Penn.)  Harrison     v.     Trustees     of     Phillips 

239;   Campbell  v.  M'Clenaohan,  6   id.  Academy,    12   Mass.   456;      Jewett   v. 

171;   Christ  v.  Devebaugh,  1  id.  466;  Warren,    id.    300;      Bartlet    v.    Will- 

Cozzens    v.    Stephenson,    6    id.    421;  iams,    1    Pick.    (Mass.)    295;   Badlam 

Baring  v.    Shippen,   2   Binn.    (Penn.)  v.    Tucker,   id.    389;   Brooks   v.    Pow- 

154;   Kelly    v.    Thompson,     7     Watts  ers,  15  Mass.  247;   Haskell  v.  Greely, 

(Penn.),  404,  405;   Besore  v.  Potter,  3  Me.  425. 
12   S.  &   R.    (Penn.)    154,   158;   Heil- 


Sec.  31.]  Parol  Evidence  as  to  Writings.  107 

creditors ;  but,  if  if  appears  that  there  was  no  fraud,  whether  the 
consideration  expressed  was,  in  fact,  paid,  or  only  agi'eed  to  be 
paid,  is  immaterial.^^ 

Where  a  deed,  absolute  on  its  face,  was  relied  on  as  a  circum- 
stance to  show  that  credit  for  certain  repairs  upon  the  premises 
was  given  to  the  grantee,  it  was  held  that  the  latter  might  show 
by  parol  that  the  premises  were  his  only  in  trust  for  a  third  per- 
son, who  received  the  rents  and  profits,  and  that  the  party  making 
■the  repairs  knew  this  before  he  commenced. ^^ 

Sec.  31.  Agency  or  Signature  in  Representative  Capacity. 

If  a  contract  is  in  writing  in  the  name  of  the  agent  alone  it  is 
permissible  by  parol  to  show  that  in  the  making  of  the  contract 
the  agent  was  acting  for  the  principal,  even  though  the  contract 
on  its  face  contains  no  suggestion  of  agency.  Such  proof  does  not 
contradict  the  writing,  it  only  explains  the  transaction.^  Thus 
extrinsic  evidence  is  admissible  to  show  that  one  signing  a  con- 
tract as  witness  was  really  the  principal.^ 

Parol  evidence  is  also  admissible  to  explain  the  nature  of  a 
signature  expressed  to  be  in  a  representative  capacity.  Thus  a 
signature  of  a  written  instrument  of  guarantee  ''E.  J.  Elliott  Pt." 
may  be  explained  by  parol  evidence  that  Ellic^tt  signed  only  as  pres- 
ident of  a  certain  bank  and  did  not  intend  to  be  personally  liable.^ 
So  to  show,  under  a  guaranty  to  "  J.  H.  President  "  that 
J.  H.  is,  or  was  when  the  writing  was  executed,  the  pres- 
ident only  of  a  certain  bank,  and  the  guaranty  will  then 
enure  to  that  bank.^     And,  generally,  where  there  is  sufficient, 

"  See    Sparrow    v.   Smith,    5    Conn.  mortgage,  that  the  defendant  had  no 

113;      Newbury    v.    Bulkley,    5    Day  interest  in  the  voyage,  and  that  these 

(Conn.),  384.  facts   were   known      to   the   phiintiff, 

"Tripp     V.'     Hathaway,     15     Pick.  who    contracted    with    M.    originally 

(Mass.)    47.  fis  to  his  services.     Champlin  v.  But- 

So  in  New  York,  where  the  master  ler,  18  John.   (N.  Y.)    1G9. 
of  a  ship  sued  A.  for  his  wages,  and  '  Powell   v.   Wade,   109   Ala.   95,   19 

on  the  trial,  to  show  that  the  defend-  So.    500,   55    Am.    St.   Rep.    915,    and 

ant  was   liable,  gave   in    evidence   an  note   p.  91G;   Escondido  Oil  &   Devel- 

absolute  bill    of    sale   of   the   ship   to  opment  Co.   v.  Glaser,   144   Cal.   494, 

the  defendant,  executed  by  M.,  it  was  77    Pac.    1040. 

held  that,   as  against   the   master,   it  =  Curran   v.  Holland,   141   Cal.   437, 

was   competent   for   the  defendant  to  75  Pac.  46. 

prove  by  parol  that  M.  was  the  real  ^  Small- v.  Elliott,  12  S.  D.  570,  82 

owner,  that  the  bill  of  sale  was  given  N.  W.  92,  76  Am.  St.  Rep.  630. 
as     collateral     security     by    way     of  *  State  Bank  v.  Peck,  28  Vt.  200. 


108  Evidence.  [Chap.  2. 

on  the  face  of  negotiable  paper,  to  create  a  doubt  to  whom  the 
credit  was  given,  then,  as  between  the  original  parties,  parol  evi- 
dence is  admissible  to  remove  that  doubt.  Thus,  a  signature  "A. 
B.,  captain,"  on  a  bill  of  exchange  not  clearly  importing  a  liabil- 
ity of  the  agent  or  of  the  principal,  parol  evidence  by  the  plain- 
tiff is  admissible,  the  contract  being  unsealed,  to  show  that  it  was 
intended  to  bind  the  owner,  the  principal,  and  that  he  had  au- 
thorized the  captain  to  bind  him  in  that  form.^  So,  too,  where  a 
bill  is  drawn  by  a  corporation,  addressed  to  its  treasurer  as  an. 
individual,  and  accepted  by  him  with  the  addition  of  treasurer, 
etc.,  a  sufficient  ambiguity  is  thereby  raised  as  to  whether  his  ac- 
ceptance was  designed  to  be  individual,  or  in  his  official  capacity, 
to  let  in  parol  evidence  to  show  the  fact.^ 

Sec.  32.  When  an  Independent  Contract  is  entered  into  as  an  In- 
ducement to  the  Execution  of  the  Principal  Contract. 

Where  a  verbal  contract  or  promise  is  made  in  reference  to  a 
collateral  matter  as  an  inducement  to  obtain  the  execution  of  the 
written  contract,  it  may  be  shown  by  parol.  Thus,  in  a  Pennsyl- 
vania case,^  the  written  agreement  was  ''to  transport  at  such  times 
as  you  may  desire,  10,000  tons  of  coal."  The  court  held  that  parol 
evidence  was  competent  to  show  that  the  plaintiff  refused  to  sign 
the  contract  unless  it  was  inserted  that  the  coal  should  be  furnish- 
ed before  October  1st,  and  that  the  defendant  then  said,  "That  is 
understood,"  and  the  plaintiff  thereupon  sined  the  contract.  The 
court  put  the  admission  of  the  evidence  upon  the  gi'ound  that  the 
attempt  of  the  defendant  afterwards  to  take  advantage  of  the 
omission  of  the  promise  from  the  contract  was  a  fraud  upon  the 
defendant,  who  was  induced  to  execute  it  upon  such  promise,  and 
consequently  that  he  might  show  the  truth  of  the  matter.^  This 
rule  was  acted  upon  in  another  case  in  that  State,^  in  which  evi- 
dence was  admitted  in  an  action  brought  by  a  tenant  against  his 

»Mav  V.  Hewitt,  33  Ala.  161.  Penn.  St.  238;  Campbell  y    McClena- 

•Lafflin,   &c.,   Powder   Co.    v.    Sins-  ehan.  6  S.  &  R.    (Penn.)    171. 

heinier.    48     Md.   411.   30    Am.    Rep.  =  Clark    v.    Partridge     2    Penn.    St. 

472;   Bradlee  v.  Boston  Glass  Co.,  IG  13;   Button  v.  Tilden,  14  id.  49. 

Pick.    (Mass.)    347;  Haile  v.   Pierce,  ^  Shugart   v.   Moore,    78   Penn.    St. 

32  Md.  330.  469. 

^Powelton  Coal  Co.  v.  McShain,  75  . 


See.  33.]  Parol  Evidence  as  to  Writings.  109 

landlord  for  a  breach  of  contract,  that  he  was  induced  to  sign  the 
lease  upon  an  oral  promise  by  the  landlord  to  build  a  barn  upon  the 
premises  before  harvest  time.  So,  in  a  Massachusetts  case,*  where 
the  defendant  sold  the  plaintiff  a  piece  of  land  and  a  store,  and 
at  the  same  time  under  a  certain  agreement  not  to  carry  on  the 
same  business  within,  certain  prescribed  limits,  it  was  held  that 
the  agTeement  being  a  part  of  the  inducement  to  the  purchase,  was 
made  upon  a  valuable  consideration,  and  that  parol  evidence  was 
admissible  to  establish  it.  But  in  these  cases  it  will  be  observed 
that  the  parol  contract  was  a  direct  inducement  to  the  execution  of 
the  written  contract,  and  that  the  contract  did  not  in  any  way  re- 
late to  the  subject-matter  of  the  parol  contract. 

Sec.  33.  Several  Writings  may  be  looked  at  to  determine  the  real 
Contract  and  Intention  of  the  Parties. 

Where  two  or  more  contemporaneous  writings  relating  to  the 
same  subject-matter  were  entered  into  by  the  parties,  the  court  may 
look  to  all  of  them  for  the  purpose  of  ascertaining  the  real  inten- 
tion of  the  parties ;  and  if  there  is  any  discrepancy  between  them, 
it  is  a  question  of  fact  for  the  jury  what  their  real  intention  was,^ 
provided  the  papers  are  all  of  equal  solemnity  with  the  principal 
document,  and  that  no  oral  testimony  is  required  for  the  purpose 

*  Pierce     v.     Woodward,     6     Pick.  been  violated.     In  a  still   later   case 

(Mass.)    206.  in    that    State,    Doyle    v.    Dixon,    12 

In  a  later  case  in  Massachusetts,  Allen  (Mass.),  576,  it  was  held  that 
Wilson  V.  Sherburne,  6  Cush.  (Mass.)  if  a  written  contract  is  entered  into 
68,  where  the  consideration  of  a  note  by  which  one  promises  to  give  to  an- 
consisted  in  part  of  the  price  of  a  other  "  a  free  and  full  possession  of 
fish  stand  which  had  been  paid  and  his  stock  and  store  for  the  full  term 
indorsed  on  the  note,  and  in  part  of  of  five  years  at  a  yearly  rent  as  un- 
an  agreement  on  the  part  of  the  derstood  by  both,"  for  which  a  cer- 
payee  not  to  engage  in  the  fish  busi-  tain  bonus  and  also  a  market  price 
ness  in  competition  with  the  prom-  for  the  stock  are  agreed  to  be  paid, 
isor,  and  the  terms  and  conditions  parol  evidence  is  not  admissible  to 
of  the  sale  were  reduced  to  writing,  show  that  this  was  executed  only  as 
which  contained  no  reference  to  the  a  memorandum  and  partial  state- 
good  will  of  the  business,  it  was  held  ment  of  the  agreement  for  a  special 
in  an  action  on  the  note  between  the  purpose,  and  that  another  independ- 
original  parties  that  the  promisor  ent  oral  agreement  was  made  at  the 
could  not  prove  in  defense  that  at  the  same  time  and  upon  the  same  con- 
time  of  the  sale  a  verbal  contract  sideration  that  the  seller  should  not 
was  made  that  the  payee  would  not  engage  in  a  similar  business  in  the 
engage  in  the  fish  business  for  a  same  place  for  five  years, 
year,   and    that   this   agreement    had  '  Payson  v.  Lamson,  134  Mass.  593. 


110 


Evidence. 


[Chap.  2. 


of  connecting  them  therewith.^  In  a  Massachusetts  case^  parol 
evidence  was  admitted  to  show  the  intention  of  the  parties  as  to 
the  payment  of  interest  upon  notes  which  upon  their  face  did  not 
bear  interest.  But  in  that  case  the  notes  were  secured  by  mortgage 
upon  real  estate,  which  was  conditioned  to  be  void  upon  the  pay- 


*  Leeds  v.  Lancashire,  2  Camp. 
205;  Hartley  v.  Wilkinson,  4  Camp. 
127;  Bell  v.  Bruen,  17  Pet.  (U.  S.) 
761;  Couch  v.  Meeker,  2  Conn.  302; 
Davlin  v.  Hill,  14  Me.  434;  Lee  v. 
Dick,  10  Pet.  (U.  S.)  482;  Gale  v. 
Williamson,  8  M.  &  W.  405;  Hunt 
V.  Livermore,  5  Pick.  (Mass.)  395; 
Stone  V.  Metcalf.  1  Stark.  53. 

'  Payson  v.  Lamson,  134  Mass.  593. 

In  this  case  notes  and  mortgage 
■were  paid,  together  with  the  interest 
thereon,  and  the  defendants  (the 
payers)  brought  an  action  against 
the  plaintiff's  to  recover  back  the  in- 
terest. The  plaintiff's  then  brought 
a  bill  in  equity  to  restrain  the  prose- 
cution of  the  action  at  law  upon  the 
ground  that  the  understanding  of 
the  parties  was,  that  the  notes  were 
to  bear  interest,  but  through  the 
fraud  of  the  defendants,  and  through 
accident  and  mistake  upon  their  own 
part,  the  notes  were  drawn  without 
interest,  and  claiming  that  they  were 
remediless  at  law.  The  court  dis- 
missed the  bill,  Allen,  J.,  saying: 
"  Where  two  papers  are  executed  at 
the  same  time,  relating  to  the  same 
contract  or  transaction,  both  may 
be  looked  at  for  the  purpose  of  show- 
ing what  the  actual  c  ontract  or 
transaction  was.  If,  on  examination, 
it  appears  that  they  are  in  some  re- 
spects inconsistent,  as.  for  example, 
if  a  contract  is  executed  in  duplicate, 
and  the  two  parts,  which  ought  to  be 
alike,  are  found  to  be  difl'erent.  or  if 
a  mortgage  does  not  correspond  with 
the  note  which  it  was  intended  to  se- 
cure, it  is  apparent  that  the  incon- 
sistency must  have  occurred  through 
some  mistake  or  accident.  It  is  cer- 
tainly not  to  be  supposed  thfit  the 
parties  have  understandingly  in- 
tended to  execute  and  deliver,  as 
parts  of  the  same  transaction,  papers 
which  are  inconsistent  with  them- 
selves; and  if  it  appears  that  they 
have  done  so,  it  is  natural  and  rea- 


sonable to  infer  that  one  of  the 
papers  was  so  executed  and  deliv- 
ered by  mistake.  In  such  case,  it 
not  being  apparent  on  the  face  of 
the  papers  tchich  one  expresses  the 
real  intention  and  agreement  of  the 
parties,  there  is  no  good  reason  tchy 
extrinsic  evidence  should  not  be  re- 
ceived in  a  court  of  law  to  shoiv  the 
fact.  Each  paper  may  be  put  in  evi- 
dence as  an  admission  or  declaration 
of  whatever  is  therein  contained.  An 
argument  may  also  be  drawn  from 
the  circumstances  of  any  particular 
case  that  one  of  the  papers  would  be 
more  likely  to  express  the  true  mean- 
ing of  the  parties  than  the  other. 
But  there  is  no  legal  presumption  to 
that  eff'ect.  There  being  then  two 
inconsistent  writings,  both  admissi- 
ble as  evidence  of  the  transaction  to 
which  both  relate,  and  there  being  no 
legal  presumption  in  favor  of  either, 
but  it  being  a  question  of  fact  which 
correctly  represents  the  agreement  of 
the  parties,  we  should  be  slow  to  ad- 
mit that  a  court  of  law,  encountering 
such  a  state  of  facts,  would  be  pow- 
erless to  deal  with  it.  and  unable  to 
consider  other  evidence  to  show 
which  paper  was  delivered  under- 
standingly, and  which  through  mis- 
take. On  the  contrary,  we  are  of 
opinion  that,  on  the  trial  of  the  ac- 
tion at  law,  it  would  be  entirely  com- 
petent for  the  present  defendants,  on 
the  one  hand,  to  show  by  extrinsic 
evidence  that  the  notes  expressed  the 
real  understanding  and  agreement  of 
the  parties,  or  for  the  present  plain- 
tiffs, on  the  other  hand,  to  show  in 
like  manner  that  the  mortgage  ex- 
pressed such  understanding  and 
agreement. 

"  Tlie  decision  of  this  court,  when 
the  action  at  law  was  before  it  on 
exceptions,  was  entirely  consistent 
with  this  view.  The  presiding  judge 
at  the  trial  had  ruled,  as  matter  of 
law,  that,  by  the  terms  of  the  mort- 


Sec.  0*3.] 


Parol  Evidence  as  to  Writings. 


Ill 


ment  of  the  ag^-e-ate  amount  of  the  notes  ^vithin  eighteen  months 
from  date,  with  interest  at  the  rate  of  six  per  cent,  per  annum,  feo 
a  party  may  show  that  certain  letters  written  as  to  a  contract  al- 
ready made  were  written  at  the  suggestion  of  the  other  party  for 
a  purpose  other  than  their  apparent  purpose  and  that  they  really 


gage,   the   debt   secured   thereby   was 
$30,000  and  interest,  and  that  it  was 
not  competent  for  the  present  defend- 
ants to  prove   that  the  notes  consti- 
tuted the   entire   mortgage   debt,  and 
that  no  other   debt  or   claim  existed 
or  was   intended   to   be   secured   than 
the  notes  without  interest,  and  that 
the    present    plaintiffs   had    no    right 
or  claim  to  recover  interest  upon  the 
notes,    or    in    any   way.     This    ruling 
was    reversed    by    this   court,    and   it 
was  held  that  the  mortgage  was  not 
conclusive   as   to   the   amount  of   the 
mortgage  debt,  that  the  notes  might 
also  be  looked  at,  and  that  it  might 
be   shown  by  evidence   that   they  ex- 
pressed  the   true   amount   of    indebt- 
edness.    That  decision  does  not  hold, 
and   does    not    imply,   that   it   would 
not    be    competent    for    the    present 
plaintiffs    to    meet   that   evidence    by 
showing    that    in    fact   the    mortgage 
expressed    the  true  amount  of  indebt- 
edness.    There  is  no  intimation  that 
the  notes   are   the   exclusive   evidence 
for  this  purpose.        Hampton   Cotton 
Mills  V.  Payson,  130  Mass.  88. 

"  Nor  is  there  anything  in  former 
decisions  of  this  court  which  upholds 
that  view.     It  has  indeed  often  been 
held,    in    this    State    and    elsewhere, 
that'  where  there  is  some  lack  of  con- 
formitv  between  a  mortgage  and  the 
note  which  it  was  intended  to  secure, 
parol  evidence  is  admissible  to  iden- 
tify the  note.     Goddard  v.  Sawyer,  9 
Allen     (Mass.),    78,    80:      Baxter^  v. 
Mclntire,     13     Gray     (Mass.),     168; 
Hough  V.  Bailey,  32  Conn.  288.     So 
on  the  other  hand,   it  has  been   held 
that  a   mortgage   is   prima  fade  evi- 
dence of  the  existence  of  a  debt  cor- 
responding      with       that      described 
therein,  and  that  the  note  is  not  the 
only    evidence    of    the    debt    secured. 
Smith  v.  Johns.  3  Gray  (Mass.),  51/. 
So  where  a  mortgage  was  given  to  se- 
cure two  notes  '  for  the  sum  of  $500, 
and    the    notes,    being    produced   and 


identified,  were  for  $500  each,  it  was 
held  that   it  might  be  shown  by   the 
notes   and    other    evidence   that   they 
correctly     represented     the    indebted- 
ness secured  by  the  mortgage.  Crafts 
V.   Crafts,   13  Gray    (Mass.),  3G0.  So 
where    a    person    had    guaranteed    a 
note   for   $256,   and   took   for   his    in- 
demnity   a    mortgage    which    errone- 
ously described  the  note  as  for  $236, 
and 'his  title  as  mortgagee  was  ques- 
tioned by  an  attaching  officer,  on  the 
ground  that  the  mortgage  was  either 
fraudulent  at  the  outset  or  had  been 
discharged,  it  was  held  competent  for 
him   to''  produce   the   note,   with    evi- 
dence of  its  identity  as  the   liability 
intended   to  be  secured,  for  the  pur- 
pose of  showing  that  there  was  a  real 
liability   which    had   not   been    extin- 
guished.    It  was  entirely  immaterial 
to  ascertain  whether  the  amount  due 
was  $236  or  $256.     The  holder  of  the 
note    was    no    party    to    the    action. 
Johns    V.   Church,    12   Pick.    (Mass.) 
507,  23  Am.  Dec.  651.     So  in  a  case 
where  there  was  no  inconsistency  be- 
tween   the    phraseology    of    the    note 
and  mortgage,   it  was  held   that   the 
legal    incident    of    three    days'    grace 
which  attached  to  the  note  should  be 
assumed   to    have    been    contemplated 
by  the    parties    as    incident    to    the 
mortgage  debt,   and  that  therefore   a 
writ  of  entry  to  foreclose  the   mort- 
gage   for    breach    of    condition    could 
not  properlv  be  brought  till  after  the 
expiration  of  the  days  of  grace:     and 
that  in  such  case,  there  being  but  one 
promise  to  pay  money,  and  there  be- 
ing no   doubt   as   to   the   phraseology 
in  which  that  promise  was  expressed, 
the  note  was  the  legitimate  evidence 
of  the  promise.       Coffin  v.  Loring,  5 
Allen    (Mass.),   153.  There   is  nothing 
in  any  of  these  cases  to  show,  or  to 
imply,   that  the  note  will,  as  matter 
of  law,  be  deemed  to  be  the  exclusive 
evidence   of  the  mortgage   debt,   in  a 
case   where    the   note    and    mortgage 


112  Evidence.  [Cliap.  2. 

i 

Tiad  no  bearing  on  the  contract.  *  Where  two  deeds  taken  together 
express  the  contract  of  the  parties  parol  evidence  is  not  admissible 
to  contradict  them.  ^  On  the  issue  whether  certain  papers  were  in- 
tended as  part  of  one  transaction,  oral  conversations  between  the 
defendants  prior  to  delivery  not  communicated  to  the  plaintiff, 
are  not  admissible.  ®  Where  a  description  of  land  in  a  deed  refers 
to  a  map  the  map  becomes  bj  legal  construction  a  part  of  the  deed 
and  is  properly  admisible  in  evidence  and  the  map  itself  cannot 
be  contradicted  by  extraneous  evidence  any  further  than  it  could 
be  if  actually  inserted  in  the  deed.  ^  So  a  contract  may  be  shown 
by  parol  to  be  the  same  contract  referred  to  in  a  bond.^  Where  a 
party  signed  a  contract  to  sell  wall  paper  at  "wholesale  prices" 
evidence  is  inadmissible  that  at  the  time  of  the  sale  it  was  agreed 
upon  that  prices  should  be  as  in  a  certain  list  submitted  as  this  is 
a  variation  of  the  contract.  There  was  no  claim  that  the  list  was 
to  be  a  part  of  the  contract  but  was  omitted  by  fraud,  accident  or 
mistake.® 

Sec.  34.  As  to  Third  Parties. 

It  is  obvious,  that  written  stipulations  may  be  inserted  in  an 
instrument  from  various  causes  besides  that  of  a  conviction  of 
the  truth  of  what  is  expressed.  So,  for  reasons  sufficient  to  in- 
fluence the  immediate  parties,  the  writing  may  be  so  fashioned  as 
not  to  express  the  whole  truth.  While  therefore,  this  conventional 
species  of  evidence  will,  in  general,  as  between  those  who  created 
it  for  their  own  purposes,  conclude  them,  and  others  standing  in 
the  like  predicament,  from  showing  any  intent  contrary  to  or  be- 
yond what  the  writing  expresses;  those  who  had  no  agency  in  the 
matter  ought  not  to  be  injuriously  affected  thereby.  Therefore 
whenever  it  becomes  material,  strangers  may  aver  and  prove  the 
real  intention,  as  contradistinguished  from  the  intention  expressed. 

are   partially  inconsistent  with  each  *  Graham   v.    Middleby,    185    Mass. 

other.     In  such  case  there  is  no  pre-  349,  70  N.  E.  R.  416. 

eumption   one  way  or  the  other,  but  ^  Snooks   v.    Wingfield,    52    W.    Va. 

the  question   is  to   be   determined  as  441,  44   S.  E.  277. 

a  matter  of  fact."  *  Nelson  v.  Willey,  97  Md.   373,  55 

"  Boulevard   Globe   &   Lamp   Co.   v.  A.  527. 

Kern  Incandescent  Gas  Light  Co.,  67  °  Fawkner     v.     Lew     Smith     Wall 

N.  J.  L.  279.  51  A.  704.  Paper   Co.,   88   Iowa,    169,   55   N.   W. 

» Sawyer  v.  Weaver,   131  U.  S.  cli,  200,  45  Am.  St.  Rep.  230. 
clii. 


Sec.  34:.]  Parol  Evidence  as  to  Writings.  113 

But  they  must  have  an  interest  in  investigating  and  knowing  the 
real  truth,  in  other  words,  the  fact  of  the  interest  sought  to  be  es- 
tablished must  be  relevant  for  the  exception  in  favor  of  strangers 
extends  only  to  allow  them  to  adduce  parol  testimony  to  prevent  a 
fraudulent  operation  of  the  instrument  upon  their  rights.^  The 
rule  that  parol  evidence  will  not  be  received  to  vary,  explain  or 
control  a  written  instrument  is  confined  entirely  to  actions  between 
the  parties  thereto,  or  their  privies  in  interest.  In  actions  between 
strangers  thereto,  the  real  facts  may  be  shown,  or  any  fact  that 
changes  the  legal  effect  of  the  contract,  or  shows  the  real  intention, 
object  or  purpose  of  the  contract;^  and  this  is  the  rule  also  in  cases 
where  the  contract  is  offered  in  evidence  in  an  action  between  a 
stranger  to  the  contract  and  one  of  the  parties  thereto  f  nor  does  it 
apply  in  actions  between  the  sureties,  as  they  are  not  regarded  as 
estopped,  by  the  provisions  of  the  contract,  from  showing  any 
agreement  between  themselves,  or  the  party  for  whom  they  be- 
came surety.  The  rule  is  confined  exclusively  to  the  parties  ac- 
tually contracting  as  principals.* 

Therefore  a  written  instrument  may  be  contradicted  by- the 
party  making  it,  when  offered  in  evidence  in  a  suit  to  which  a 
stranger  to  the  instrument  is  a  party.^ 

So  in  a  suit  between  a  party  to  a  written  contract  and  a 
.stranger  to  it,  neither  party  is  concluded  by  the  terms  of  the  writ- 
ing, but  either  may  show  by  parol  that  the  contract  was  otherwise 

'Wilson    V.    Mulloney,    185    Mass.  W.  248;   Barreda  v.  Silsbee,  21   How. 

430,   70   N.   E.   R.   448;      Walker   Ice  (U.   S.)    146;   Blake  v.   Hall.    19   La. 

Co.   V.   American   Steel,   etc.,   Co..   185  An.  49 ;  Woodman  v.  Eastman,   10  N. 

Mass.  46.3,  70  N.   E.  R.   937;    British  H.  359;      Edgerly  v.   Emerson,  23  N. 

&    A.    Mortg.    Co..   Limited,   v.    Cody,  H.  555;     Farbush  v.  Goodwin,  25  N. 

135  Ala.   622,   33   So.  832;   Krider  v.  H.   425;   New  Berlin   v.   Norwich,    10 

Laffertv.     1     Whart.      (Penn.)     303;  Johns.     (N.    Y.)     229;      Reynolds    v, 

Berlin  V.  Norwich,  10  John.    (N.  Y.)  Magness,    2    Ired.     (N.    C.)     L.    26; 

229;      per  Taylor,   J.,    in    Brooks   v.  Hughes     v.     Sandal,     25    Tex.     162; 

Maltbie.  4  S.  &  P.   106;   Whitbeck  v.  Venable   v.    Tliompson,    11    Ala.    147; 

Whitbeek,     9     Cow.      (N.     Y.)      270;  Stradder    v.    Lambeth,    7     B.    Monr. 

Havne    v.    Campbell.    6    Mon.     (Ky.)  (Ky.)    589;  Van  Eman  v.  Starchfield, 

292;   Johnson  v.   Blackman,   11   Conn.  10    Minn.    255:   Thomas    v.    Truscott, 

351.  53   Barb.    (N.   Y.)    200;   Woodman  v. 

=  So  a  contract  to  cut  down  lumber  Eastman,   10  N.  H.  359 :      Hughes  v. 

may   be   construed   to   be   a   mere   re-  Sandall,  25  Tex.  162;   Bareda  v.  Sils- 

Yocable   license,  as  between  strangers  bee,  21   How.    (U.   S. )    146;    Blake  v. 

to   it.     Bruce   v.   Roper   Lumber    Co.,  Hall.    19    La.    Ann.    49;    Forbush    v. 

87  Va.  381,  13  S.  E.   153,  24  Am.  St.  Goodwin,  25  N.  H.  425:   Reynolds  v. 

Rep.  657.  Magness.   2    Ired.    ( N.    C.)    26. 

=  First  Nat.  Bank  of  Wavne  v.  Tol-  *  Thomas   v.  Truscott.  ante. 

lerton  &  Stetson   (Neb.,  1903),  97  N.  "Venable  v.  Thompson,  11  Ala.  147, 

8 


-114  Evidence.  [Chap.  2. 

than  the  writing  shows.®  So  where  a  railroad  is  sued  for  the  burn- 
ing of  certain  buildings,  it  cannot  object  to  the  introduction  of 
parol  evidence  by  the  plaintiff  to  the  effect  that  a  certain  deed  he 
gave  of  the  land  on  which  the  buildings  stood  did  not  include  them.'^ 
A  party  to  a  deed  in  an  action  brought  against  him  by  a  third 
party  may  prove  a  contemporaneous  oral  agreement  with  the  other 
party  to  the  deed  altering  his  rights  in  the  property  as  shown  in. 
the  deed.^  The  amount  of  consideration  expressed  in  an  agree- 
ment for  sale  of  land  is  not  conclusive,  but  may  be  shown  by  parol 
in  an  action  by  a  real  estate  broker  for  his  commission.®  Evidence 
of  negotiations  prior  to  the  making  of  a  contract  is  competent  in 
an  action  between  one  of  the  contracting  parties  and  a  third  party.^*^ 
In  a  controvery  between  a  party  to  a  contract  and  a  stranger  the 
parol  evidence  rule  is  not  applied  to  what  a  partner  said  at  the 
time  articles  for  dissolution  of  the  partnership  were  drawn  up. 
This  conversation  is  a  part  of  the  transaction  and  is  competent 
evidence  in  his  behalf  in  a  suit  between  him  and  a  third  party.^^ 
The  rule  that  parol  evidence  is  inadmissible  to  contradict  or 
vary  the  terms  of  a  valid  written  instrument,  is  applied  only  in. 
suits  between  the  parties  to  the  instrument  and  their  privies  in  in- 
terest,^^  and  does  not  apply  to  cases  arising  between  sureties ;  it  is 
limited  to  the  stipulations  between  the  parties  actually  contracting: 
with  each  other  by  the  written  instrment.^^ 

Sec.  35.  Judicial,  Corporate  and  Official  Records. 

A  judicial  record  imports  absolute  verity  on  its  face,  and  can- 
not be  impeached  by  parol,^  and  all  .the  questions  relating  to  the. 
time  when  it  was,  in  fact,  made,  on  what  authority  made,  and 
whether  its  recitals  are  true  or  not,  must  be  settled  by  reference  to 

"  Stradder   v.   Lambeth,   7    B.  *Mon.  "  Van     Eman     v.     Stanchfield,     10- 

(Ky.)    589.  Minn.  255. 

^Olmstead  v.  Oregon  Short  Line  R.  "Thomas  v.  Truscott,  53  Barb.   (N. 

Co.,  27  Utah,  515,  76  Pac.  557.  Y.)    200. 

'  Carmaek  v.  Drum,  32  Wash.  236,  '  Speirs    Fish   Co.    v.    Robbins,    18-? 

73  Pac.  377.  Mass.   128,  65  N.  E.   R.  25;   Rubel  v.. 

•  Witzel   V.   ZiieL  90  Minn.   340.  96  Title  Guarantee  &  Trust  Co.,  199  111. 

N.  W.  1124.  110,  64  N.  E.  R.   1033,  where  it  was. 

"Livingston  v.   Stevens,    122  Iowa,  sought  to  prove  that  a  judgment  in- 

62,    94    X.    W.    925;       Livingston    v.  eluded  an  item  of  rent  not  appearing- 

Heck,  122  Iowa,  74,  94  N.  W.  1098.  on  the   record.     Murrah  v.   State,   51 

"Marks  &  Stix  v.  Hardy's  Admin-  Miss.   652:   Driggs   v.   Morgan,   2   La. 

istrator    (K\.,  1903),  78  S.  W.  864.  An.  151;   Taylor  v.  Jones,  3  id.  619. 


S<?c.  35.] 


Parol  Evidence  as  to  Writings. 


115 


the  record  alone.^  But  when  the  precise  hour  of  the  day  upon 
which  a  judgment  was  entered  becomes  important,  and  the  record 
is  silent  upon  that  point,  it  may  be  shown  by  paroh^  So  where  the 
record  is  silent  as  to  the  precise  claim  upon  which  the  judgment 
was  predicated,  it  may  be  shown  by  reference  to  the  pleadings  or 
by  parol,  as  to  identify  the  note  on  which  it  was  rendered.^  The 
parties  to  a  judginent  may  be  identified  by  parol  f  and  where  pro- 
ceedings are  brought  to  correct  a  mistake  in  a  judgment,  evidence 
is  admissible  outside  of  the  judgment  to  show  the  mistake.^  In- 
deed, upon  grounds  of  public  policy,  and  that  there  may  be  an  end 
to  disputes,  judicial  records  are  held  conclusive  as  to  the  facts 
stated  therein  as  to  the  parties  and  their  privies,  and  are  a  bar  to 
all  inquiry  as  to  the  truth  or  falsity  of  the  facts  stated  therein.'' 
A  judgment  is  a  solemn  record.  Parties  have  a  right  to  rely  upon 
it.  It  should  not  lightly  be  disturbed,  and  ought  never  to  be  over- 
thrown, or  limited  by  the  oral  testimony  of  a  judge  or  juror  of 
what  he  had  in  mind  at  the  time  of  the  decision.^    A  foreign  judg- 


*Herrington    v.    McCollom,    73    111 
476.       Its     date     cannot     be     contra-       29. 
dieted   by   parol.        Wiley   v.    Suther- 
land, 41  111.  25. 

^  In  Lansing  v.  Pawson,  38  Penn. 
St.  480,  it  was  held  that  in  an  issue 
as  to  whether  a  judgment  upon  war- 
rant of  attorney  was  entered  before 
the  death  of  the  defendant  therein, 
it  was  not  error  to  admit  the  testi- 
mony of  'the  clerk  who  entered  the 
judgment,  that  it  could  not  have 
been  entered  earlier  than  eight 
o'clock  in  the  morning. 

*  Where  the  record  does  not  show 
on  which  of  several  issues  presented 
by  the  pleadings  judgment  was  in 
fact  rendered  it  was  competent  to 
show  this  by  evidence  aliunde,  not 
however  to  contradict  the  record  but 
in  support  of  it.  Inhabitants  of 
Embden  v.  Lisherness,  89  Maine.  578, 
36  A.  1101,  56  Am.  St.  Rep.  442; 
Hood  V.  Hood,  110  Mass.  463; 
Nashua,  etc.,  R.  Corporation  v.  Bos- 
ton, etc.,  R.  R.  Corporation,  164 
^lass.  222.  226.  49  Am.  Rep.  454; 
Slater  v.  Skirving.  51  Neb.  108,  70 
N.  W.  493,  66  Am.  St.  Rep.  444; 
Hampton  v.  Dean,  4  Tex.  455; 
Parker  v.  Thompson,  3  Pick.  (Mass.) 
429. 


=  Root  V.  Fellows,  6  Cush.    (Mass.) 


"  Jenkins  v.  Long,  23  Ind.  460. 

'Aldridge  v.  Haines,  2  B.  &  Ad. 
408. 

In  an  action  in  ejectment  where 
the  plaintiff's  title  depends  on  cer- 
tain tax  deeds  the  defendants  may 
not  attack  the  decree  for  sale  which 
was  the  basis  of  the  tax  deeds  by 
showing  that  the  amount  of  the  taxes 
was  not  stated  in  the  decree  as  re- 
quired l\y  statute  when  signed  by  the 
judge  but  was  filled  in  later.  Haven 
V.  Owen,  121  Mich.  51,  79  N.  W.  938. 
80  Am.  St.  Rep.  477,  and  note  page 
479. 

^  Faverweather  v.  Pitch.  195  U.  S. 
276,- 307,  25  S.  Ct.  oS,  where  testi- 
mony of  the  presiding  judge  was  ex- 
cluded. The  record  of  a  court  may 
not  be  contradicted  by  a  letter  of  a 
judge  of  the  court.  Bent  v.  Stone, 
184  Mass.  92,  68  N.  E.  R.  46.  Jury- 
men may  not  impeach  their  verdict 
by  testimony  that  it  did  not  include 
certain  items  which  the  jury  had 
been  instructed  by  the  court  to  in- 
clude in  their  verdict,  as  this  would 
be  a  contradiction  of  che  record. 
Oster  V.  Broe,  161  Ind.  113,  64  N.  E. 
R.     918.        Testimony    by    a    referee 


116 


Evidence. 


[Hiap.  2. 


ment  may  be  supplemented  by  proof  of  the  law  and  i)ractiee  in 
the  foreign  court,  so  it  is  open  to  one  relying  upon  a  foreign  judg- 
ment in  favor  of  a  partnership  to  show  that  in  the  foreign  court  it 
is  permissible  to  bring  suit  in  the  name  of  the  partnership.^  In 
general,  a  judgment  intei-  partes  will  bind  only  the  parties  and 
their  privies,  but  a  judgment  in  rem  is  binding  upon  the  world, 
even  though  it  is  not  pleaded/" 

The  records  of  a  corporation  may  be  explained  and  read  in  the 
light  of  the  surrounding  circumstances,^^  and  omissions  in  the  rec- 
ords may  be  supplied/^  Evidence  will  not  be  received  to  contra- 
dict the  record  of  a  public  governing  body,  as  a  city  council,  where 
the  law  requires  such  a  record  to  be  kept,  but  extrinsic  evidence 
may  be  received  to  show  occurrences  which  through  oversight,  or 
some  other  cause,  were  not  recorded,^^  and  so  of  the  official  records 


in  bankruptcy  that  in  allowing  a 
claim  he  did  not  undertake  to  adjudi- 
cate on  the  creditor's  riofht  to  re- 
tain two  items  in  the  claim  alleged 
to  be  preferences  is  inadmissible  as 
contradicting  his  judicial  records. 
Clendening  v.  Red  River  Valley  Na- 
tional Bank,  12  N.  D.  51,  94  X.  W. 
901.  But  a  magistrate's  certificate 
in  Massachusetts  is  not  conclusive 
and  where  he  certified  that  he  had 
caused  certain  notices  to  l>e  served  he 
may  testify  who  served  tjiem.  O'Con- 
nell  V.  Dow,  182  Mass.  541,  66  N. 
E.  R.  788. 

» Fisher  v.  Fielding,  67  Conn.  91, 
34  A.  714,  52  Am.  St.  Rep.  270. 

'"Hannsford  v.  Hun,  2  C.  &  P. 
155 ;  ■Magrath  v.  Hardy,  4  Bing.  N. 
C.  796. 

"  Chesapeake  &  O.  Rv.  Co.  v.  Deep- 
water  Rv.  Co.  (W.  Va..  1905).  50 
S.  E.  890. 

^-  Where  no  records  of  a  corpora- 
tion are  kept,  (Childs  v.  Ponder,  117 
Ga.  553,  43  S.  E.  986,)  or  where  no 
record  or  written  memoranda  of  the 
minutes  of  a  stockholders'  meeting 
are  kept,  the  proceedings  may  be 
shown  by  parol  evidence.  Birming- 
ham Railway  &  Electric  Co.  v.  Bir- 
mingham Traction  Co.,  128  Ala.  110, 
29  So.  187.  Where  the  statute  does 
not  require  a  record  of  the  action  of 
the  directors  of  an  agricultural  so- 
ciety, omissions  in  the  corporate 
records    may    be    supplied    by    parol. 


Ismon  y.  Loder,  135  Mich.  345,  97 
N.  W.  769.  Where  the  records  of 
a  corporation  show  that  the  plaintiff 
was  elected  an  officer  in  the  corpo- 
ration parol  evidence  is  admissible 
to  show  a  vote  of  the  directors  as  to 
his  salary.  Mliich  vote  was  not  in  the 
record.  Sellev  v.  American  Lubri- 
cator Co..  119  Iowa,  591,  93  X.  W. 
590.  Where  a  journal  of  a  munici- 
pal corporation  shows  that  a  certain 
ordinance  was  "  passed  by  council," 
parol  evidence  is  admissible  .to  show 
the  vote  by  which  it  was  in  fact 
passed.  Gove  v.  Tacoma,  34  Wash. 
434,   76   Pac.  73. 

"  Chippewa  Bridge  Co.  v.  City  of 
Durand  (Wis.,  1904),  99  N.  W. '603, 
009.  The  acts  of  such  boards  as 
municipal  officers  or  county  commis- 
sioners whicli  might  receive  for  pub- 
lic use  the  property  of  individuals 
must  be  done  with  due  formality  and 
entered  of  record ;  the  record  by  pre- 
sumption of  law  shows  the  full  pro- 
ceedings and  parol  evidence  cannot 
supply,  extend  or  modifj-  it.  So  even 
the  testimony  of  the  mayor '  of  the 
city  as  to  the  location  of  a  sewer  is 
inadmissible  in  the  absence  of  some 
record  of  municipal  action.  Kidson 
y.  Bangor,  99  Me.  139,  58  A.  900. 
Where  the  statute  requires  the  town 
clerk  to  keep  a  record  of  every  vote 
of  the  town,  his  record  is  the  only 
proper  evidence  of  a  vote  and  parol 
evidence    of    it   is    inadmissible.     Cin- 


Sec.  36.]  Parol  Evidence  as  to  Writings.  117 

of  public  officers.^*  Parol  evidence  is  inadmissible  of  the  purpose 
of  members  of  a  legislative  body,  as  for  instance  a  county  board, 
in  passing  a  certain  enactment/^  and  no  parol  evidence  may  be  ad- 
mitted to  explain  or  alter  the  journals  of  the  legislature  itself  as 
they  import  absolute  verity  and  truth. ^®  The  journal  of  the  legis- 
lature kept  as  provided  by  the  constitution  cannot  be  varied  or 
impeached  by  evidence  of  its  untruth  and  of  fraud  in  the  clerks 
and  members  of  the  legislature  who  had  to  do  with  it.-^^ 

Sec.  36.  Assignments. 

Where  property  or  choses  in  action  are  assigned  by  an  instru- 
ment in  writing,  which  upon  its  face  purports  to  embrace  the  en- 
tire contract,  it  is  subject,  at  law,  to  the  general  rule  that  parol  evi- 
dence is  not  admissible  to  vary  or  contradict  it,^  but  in  equity  such 
evidence  is  admissible  to  show  that,  although  absolute  in  form,  it  is 
not  so  in  fact,"  as  that  an  assignment  of  a  mortgage  to  one  person 
by  name,  was  in  fact  intended  for  the  benefit  of  another,  as  well 
as  himself.^  The  real  consideration  of  an  assignment  may  be 
shown,  even  though  the  effect  is  to  show  the  object  of  the  assign- 
ment.^    So  fraud  may  be  shown ;"  so,  too,  parol  evidence  may  be 

cinnati,   I.   &   W.   Ry.    Co.   v.   People,  the  bill  was  originally  filed  with  his 

206  111.  290,  69  N.  E.  E.  40.  A  record  approval    upon    it    and    subsequently 

of  a  public  board  dulv  certified  by  its  returned   and   vetoed.     People  v.  Mc- 

secretary  under  its  seal  is  conclusive  Cullough,  210  111.  488,  71  N.  E.  602. 

and  cannot  be  impeached  bv  oral  tes-  '°  Northern    Trust    Co.     v.     Snyder, 

timony  from  the  secretary  that  a  cer-  113  Wis.  .516,  89  N.  W.  460,  90  Am. 

tain    "statement    in    the    record    had  St.  Rep.  867. 

been    interlined    pending    the    suit   in  ^^  Town  of  Wilson  v.   Markley,   133 

which   it   is   offered   and   was   not   in  N.  C.  016,  45  S.  E.  1023.      - 

the   original    record.     State   v.   Main,  "Taylor  v.  Beckham,  108  Ky.  278, 

69   Conn.    123,   37   A.  80,  61   Am.   St.  56  S.  W.  177,  94  Am.  St.  Rep.  357. 

Rep.    30.        The    record   of    a    taxing  'Osgood    v.     Davis,     18     Me.     146; 

board   may  be  contradicted  or  added  Durgin  v.   Ireland,   14  N.   Y.  822. 

to  by  proof  of  the  real  facts  in  mat-  -  Rhodas   v.    Farmer, -17    How.    (U. 

ters "  of  taxation.     State   v.   Aldridge,  S. )   404. 

66   Ohio,   598,   64   N.   E.   R.   562,   but  ^  Laeket    v.    Child,     11     Ala.     640; 

parol     evidence     is     inadmissible     to  Brown  v.   Isbel,   11   id.   109.     But  see 

vary  the  records  of  the  tax  board  by  Aldrich     v.     Hapgood,     39     Vt.     617, 

showing    even    by    testimony    of    one  where  it  was  held  that  where  an  as- 

of  its   members  that  it  actually  took  signment    was    made    ostensibly    for 

action  later  than  on  the  date  set  out  the  benefit  of  three  persons,  it  could 

in   the    record.        Montana   Ore    Pur-  not    be    shown    to    have    really    been 

chasing  Co.  v.  Maher   (Mont.,  1905.),  intended  for  the  benefit  of  only  one 

81   Pac.  13.  of  the  assignees. 

"  Where  the  record  in  the  office  of  *  Lockwood     v.     Canfield,     20     Cal. 

the  Secretary  of  State  shows   that  a  126;   Galwey's   Appeal,   34   Penn.    St. 

bill     was    vetoed     by     the     Governor,  242. 

oral   evidence  is   inadmissible  to  con-  "Russell  v.  Tuttle,  2  Root  (Conn.), 

tradict   this    record   by   showing  that  22. 


118  Evidence.  [Chap.  2. 

given  to  show  and  correct  a  merely  clerical  error  therein,  as  in 
making  up  the  schedule  when  a  note  or  demand  is  misdescribed, 
for  the  purpose  of  identifying  the  note  or  demand  and  fixing  the 
true  amount,  evidence  of  the  mistake  may  be  shown  f  and  if  the 
assignment  is  general  on  its  face  and  admitted  to  be  for  a  different 
purpose,  parol  evidence  of  the  intent  of  the  parties  may  be  given.' 
Evidence  is  not  admissible  to  show  that  other  property  than  that 
named  in  the  agreement  was  intended  to  have  been  emljraced 
therein  f  nor  can  it  be  shown  that  an  assignment  of  a  mortgage  was 
intended  to  be  a  discharge  except  for  the  puqwse  of  proving 
fraud  f  or  that  an  assignment  of  stock  under  seal,  which  is  abso- 
lute on  its  face,  was  intended  as  a  mortgage  •,^'^  or  that,  at  the  time 
when  an  assignment  of  stock  was  made,  the  assignor  promised  to 
make  a  good  and  effectual  title  thereto.^^ 

Sec.  37.  Negotiable  Instruments. 

The  so-called  "•  parol  evidence  rule  "  is  much  restricted  in  its  ap- 
plication to  negotiable  instruments  by  the  various  peculiar  rules 
of  substantive  law  which  govern  them,  such  as  the  rule  protecting 
bona  fide  purchasers  and  other  doctrines  taken  from  the  law  mer- 
chant. Evidence  is  inadmissible  that  a  note  absolute  on  its  face 
was  to  be  paid  only  out  of  a  certain  fund,^  or  only  on  some  condi- 
tion precedent,^  or  subsequent,^  or  was  a  mere  receipt  for  an  ad- 

*  Marsh  v.  Mandeville,  28  Miss.  ing  a  promissory  note  receives  in  re- 
122;   Piatt  v.  Hyde.  8  Iowa.  380.  turn    a    contract    of    indemnity    "in 

'  Closes  V.  Murgatroyd.  1  Jolin.  Ch.  the  payment  "  of  the  note  he  cannot 

(N.   Y. )    119.  sliow   that  the    note    was   to   be   paid 

*  Driscoll  V.  Fiske.  21  Pick.  (Mass.)  onlv  upon  certain  contingpncies, 
503;  Taylor  v.  Sayre,  24  N.  J.  L.  Prouty  v.  Adams,  141  Cal.  304,  74 
647.           *  Pac.  845.     In  an  action  by  the  payee 

"  Hamand      v.      Howard,      3      Met.  of  a  note  against  the  maker,  the  de- 

(Mass. )    548.  fendant  may  not  show  that  the  note 

'"  Bond   V.    Susquehanna    Co.,   6   H.  was   given   for   a    scholarship   or    the 

&  J.    (Md.)    128.     But  this  only  ap-  right    to   attend    a    college,    and    was 

plies  in  those  States  wherein  the  old  not  to   be   paid   unless   the  defendant 

distinction    as   to   instruments   under  actually       used        the        scholarship, 

seal   is  preserved.     See  contra,  Davis  Jamestown  Business  College  Ass'n  v. 

V.  Crookston  Water  Works,  etc.,  Co.,  Allen,   172  N.   Y.  291,  64  N.  E.   952, 

57  Minn.  402,  59  N.  W.  482,  47  Am.  92  Am.   St.  Rep.   740. 
St.  Rep.   622;   Gross  v.   Heckert,   120  'Jamestown  Business  College  Ass'n 

Wis.  314,  97  N.  W.  952.  v.  Allen,  172  N.  Y.  291,  64  N.  E.  R. 

"Osgood  V.  Davis,  18  Me.  146.  952.        Evidence    is     incompetent     to 

^Fuller  V.  Law,  207   Penn.   101,  56  show    that    notes    were    delivered    on 

A.   333.     Dividends  on  certain   stock.  condition   that   if   a    company   is   put 

^Torpey  v.  Tebo,  184  Mass.  307,  68  into    bankruptcy    on    account    of    the 

N,    E.   R.   223.     Where   a   party   giv-  transaction   in  which  the  notes  were 


Sec.  37.] 


Parol  Evidence  as  to  Writi^ucs. 


119 


Yancement.'  But  it  may  be  shown  by  parol  in  what  capacity  the 
maker  executed  the  note,^  or  that  it  was  given  without  considera- 
tion for  use  by  the  payee  as  collateral,  and  he  may  also  interpose  a 
claim  of  set-off.'  Parol  evidence  is  admissible  as  between  the  im- 
mediate parties  to  the  transaction  to  show  their  agreement  as  to 
the  purpose  and  effect  of  an  endorsement  on  a  promissory  note.' 
Where  a  person  other  than  the  payee  writes  his  name  on  the  back 
of  a  note,  his  contract  may  be  shown  by  parol,'  even  though  the 
words  "  waiving  demand  and  notice  "  indicative  of  a  regular  m- 
orser  are  placed  above  the  indorsement.^  Evidence  will  not  be  re- 
ceived of  an  agreement  contradictory  of  the  instrument,^"  unless  to 


given  the  notes  were  to  be  null  and 
void.  Central  Savings  Bank  v. 
O'Connor,    132  Mich.   578,  94  N.   W. 

^  Parol  evidence  is  inadmissible  to 
show  that  a  note  executed  by  a  son 
to  a  father  is  really  a  receipt  for  an 
advancement  made  by  the  father  out 
of  his  estate  to  the  son.  Schmidt  y. 
iScmidt's  Estate  (Wis.,  1904),  101  N. 
W  678.  Contra,  Brook  v.  Latimer, 
44"  Kan.  431,  24  P.  946,  21  Am.  St. 
Rep.  292. 

=  Parol  evidence  is  admissible  to 
show  that  one  signed  a  promi^ory 
note  as  a  witness  only,  who  affixed 
his  signature  to  the  lower  left  hand 
corner  of  the  note  where  witnesses 
usually  sign.  Aultman  &  Taylor 
Co.  V.  Gunderson,  6  S.  D.  226,  60  N. 
W  859,  55  Am.  St.  Rep.  837.  Where 
a  note  is  given  by  one  personally  pa- 
rol evidence  is  admissible  to  show 
that  he  signed  it  as  a  partner  in  be- 
half of  a  partnership  and  on  that 
question  the  statement  of  the  maker 
at  the  time  of  execution  as  to  the 
account  on  which  he  made  the  note 
is  admissible  as  part  of  the  res 
gestae.  Beckwith  v.  Mace  (Mich., 
1905),   103  N.  W.  559. 

«  Brown  v.  Smedley  (Mich.,  1904), 
98  N  W.  856;  Clark  v.  Ducheneau, 
26  Utah,  97,  72  Pac.  331,  note  as  col- 

'  Witherow  v.  Slayback,  158  N.  Y. 
649,  53  N.  E.  681,  70  Am.  St.  Rep. 
507;  Jaster  v.  Currie  (Neb.,  1903), 
94  N.  W.  995.  An  indorsement 
of  a  promissory  note  by  A. 
"pay  to  the  order  of  B."  may  be 
explained  by  parol  except  as  against 


a  bona  fide  holder,  by  showing  that 
title  was  never  intended  to  pass  to 
B.  Ragsdale  v.  Ragsdale,  105  La. 
405,  29  So.  906.  But  it  is  held  in 
some  States  that  one  indorsing  a 
note  regularly,  that  is,  under  the 
signature  of  the  payee,  is  conclusively 
presumed  to  be  liable  as  second  in- 
dorser  to  a  subsequent  party  whether 
the  latter  is  an  innocent  purchaser 
or  not  and  he  cannot  show  by  parol 
that  he  signed  as  a  witness  or  a 
guarantor.  Bowler  v.  Braun,  63 
Minn.  32,  65  N.  W.  124,  56  Am.  St. 
Rep.  449;  Barringer  v.  Wilson  (Tex., 
1904),  80  S.  W.  994. 

« Carter  v.  Long,  125  Ala.  280,  28 
So.  74;  Young  v.  Schon,  53  W.  Va. 
127,  44  S.  E.  136;  Heidenheimer  v. 
Blumenkron,  56  Tex.  308.  Parol  evi- 
dence is  admissible  to  show  that  an 
endorser  of  a  note  signed  it  before 
delivery  as  additional  security  to  the 
payee  "and  therefore  is  liable  as  a 
joint  maker.  Bank  of  Jamaica  v. 
Jefferson,  92  Tenn.  537,  22  S.  W.  211, 
36  Am.  St.  Rep.   100-. 

*  Richardson  v.  Foster,  73  Miss.  12, 
18  So.  573,  55  Am.  St.  Rep.  481. 

i^The  drawer  of  a  bill  of  exchange 
cannot  show  a  parol  agreement  with 
the  payee  not  to  hold  the  drawer  re- 
sponsible for  any  default  on  the  part 
of  the  payee.  Bryan  v.  Duff,  12 
Wash.  233,  40  P.  936,  50  Am.  St. 
Rep.  889.  An  endorsement  of  a 
promissory  note  "  without  recourse  " 
cannot  be  varied  by  evidence  of  a  pa- 
rol agreement  of  guaranty  by  the  in- 
dorser.  Youngberg  v.  Nelson,  51 
Minn.  172,  53  N.  W.  629,  38  Am.  St. 
Rep.  497.     Where  an  absolute   prom- 


120 


Evidence. 


[Chap.  2. 


show  illegality,"  or  the  consideration  as  .between  immediate  par- 
ties/^ or  where  the  instrument"  is  ambiguous  on  its  face.^^ 

Sec.  38.  Bills  of  Lading. 

Bills  of  lading  are  regarded  as  of  a  dual  nature,  being  both  re- 
ceipts and  contracts,  and,  so  far  as  they  partake  of  the  nature  of 
receipts,  parol  evidence  is  admissible  to  explain  or  vary  them^ 
as  to  that  extent,  they  are  only  regarded  as  prima  facie  evidence.^ 
But,  so  far  as  the  bill  expresses  the  actual  contract  between  the  car- 
rier and  sliipper,  parol  evidence  is  not  admissible  to  alter,  vary  or 
explain  it.^  The  bill  of  lading,  to  the  extent  that  it  confesses  tha 
delivery  and  acceptance  of  the  goods  by  the  carrier,  is  a  receipt. 
In  other  respects  it  is  a  contract,  and  the  contract  particularly  cov- 
ers the  obligation  of  carrying  the  goods  to  destination  and  of  de- 
livering them  to  the  consignee.^    Thus  it  is  liekl  that  a  bill  of  lad- 


issory  note  is  given  reciting  that  it 
is  in  settlement  of  an  old  note  evi- 
dence is  incompetent  even  as  between 
the  original  parties  to  the  note  to 
vary  it  by  any  evidence  of  a  contem- 
poraneous parol  agreement.  American 
Harrow  Co.  v.  Dolvin,  119  Ga.  186, 
45  S.  E.  983.  Where  a  note  is  made 
expressed  to  be  for  the  purchase  of  a 
horse  the  seller  may  not  show  by  pa- 
rol evidence  that  he  warned  the 
buyer  of  certain  defects  in  the  horse 
and  sold  it  subject  to  those  defects, 
Billiard  v.  Brewer,  118  Ga.  918,  45 
S.  E.  711,  and  the  buyer  may  not 
show  a  contemporaneous  parol  agree- 
ment to  return  the  horse  in  exchange 
for  the  note  if  the  horse  should  not 
prove       satisfactory.  Thisler       v. 

Mackey,  65  Kan.  464,  70  Pac.  334. 

"  Parol  evidence  is  admissible  to 
show  that  a  note  on  its  face  payable 
with  interest  at  10  per  cent,  is  in 
reality  by  verbal  agreement  payable 
with  interest  at  20  per  cent.,  which 
latter  rate  is  usurious.  Roe  v. 
Riser,  62  Ark.  92,  34  S.  W.  534,  54 
Am.  St.  Rep.  288. 

'^  As  between  an  indorsee  and  his 
immediate  indorser  the  consideration 
is  always  open  to  inquiry.  Peabody 
V.  Munson,  211  111.  324,  71  N.  E. 
1006. 

'=■  Where  a  note  is  signed  by  two 
parties  payable  to  the  order  of  "  my- 
self "  parol  evidence  is  admissible  to 
show    which    of    the    two    makers    is 


meant  bv  the  word  "  myself."  Jen- 
kins V.  Bass,  88  Kv.  397,  11  S.  W. 
293,  21  Am.  St.  Rep.  344. 

'  Steamboat  ^lissouri  v.  Webb,  9 
Mo.  193;  Sutton  v.  Kettell,  1  Sprague 
(U.  S.  C.  C),  309;  The  Tusket,  id. 
71;  Great  Western  R.  R.  Co.  v.  Mc- 
Donald, 18  111.  172:  Hendricks  v. 
Steamer  Morning  Stiir,  IS  La.  An. 
353:  Baltimore,  «S-c.,  Steamboat  Co. 
V.  Browne,  54  Penn.  St.  77:  O'Brien 
V.  Gilchrist,  34  Me.  554;  Atwell  v. 
Miller.  11  Md.  348;  Graves  v.  Har- 
wood,  9  Barb.  (N.  Y.)  77;  McTyer 
V.  Steele.  26  Ala.  487:  Wolfe  v. 
^Myers.  3  Sandf.  (X.  Y.)  7.  A  bill  of 
lading  may  or  may  not  be  the  whole 
contract  between  the  parties. 
Whether  it  is  the  entire  contract  or 
nothing  more  than  a  receipt  is  a  ques- 
tion of  fact  for  the  jury  as  to  which 
parol  evidence  is  admissible.  Bank 
of  British  Xortli  America  v.  Cooper, 
137  U.  S.  473,  477,  11  S.  Ct.  160. 

-  INlcTver  v.  Steele,  ante ;  Steam- 
boat ilissouri  V.  Webb,  9  Mo.  193; 
Cheeny  v.  Holly,  14  Wend.  (N.  Y.) 
26;  Jones  v.  Warner,  11  Conn.  40; 
Cox  V.  Paterson,  30  Ala.  608;  Arnold 
V.  Jones,  26  Tex.  335;  Shaw  v. 
Gardner,  12  Grav  (Mass.),  488; 
Gardner  v.  Chase,  2  R.  I.  112; 
WHiite  V.  Van  Kirk,  25  Barb.  (N.  Y.) 
16. 

=  Sonia  Cotton  Oil  Co.  v.  The  Red 
River,   106  La.  42,  30  So.  303. 


Sec. -39.]  Parol  Evidence  as  to  Writings.  121 

ing  or  railroad  receipt  which  states  that  the  goods  are  received  in 
good  order,  is  to  that  extent  only  a  receipt,  and  does  not  estop  the 
carrier  from  showing  that  the  goods  were  really  in  a  damaged  con- 
dition. But  such  proof  must  be  confined  to  defects  not  known  to 
the  carrier  when  the  receipt  w^as  given.^  A  recital  in  a  bill  of  lad- 
ing that  the  shipper  releases  the  carrier  from  liability  in  consid- 
eration of  the  reduced  rate  charged  for  freight  is  not  conclusive, 
but  is  open  to  evidence  that  the  regular  rate  was  charged.^  It 
may  be  shown  by  parol  that  the  endorsement  and  delivery  of  a  bill 
of  lading  to  a  bank  was  merely  for  collection,  as  such  evidence  does 
not  contradict  the  endorsement,  but  merely  shows  its  purpose.*^ 

But  a  bill  of  lading  may  be  varied  by  a  subsequent  parol  agree- 
ment, and  such  supplemental  contract  may  be  shown  by  parol  evi- 
dence.^ 

Sec.  39.  Bills  of  Sale. 

Bills  of  sale  absolute  upon  their  face,  cannot  be  shown  by  parol 
to  be  in  fact  only  intended  as  collateral  security,  particularly 
where  the  right  of  third  persons,  wall  be  affected  by  such  proof.^ 
But  in  order  to  exclude  such  proof,  they  must  express  a  contract ; 

*  Blade  v.   Chicago,  &c.,  R.   R.   Co.,  is  to  vary  the  terms  of  the  contract 

10  Wis.  4.  as   expressed    in   the    bill.      Arnold   v. 

''Lake   Erie   &    W.   R.    Co.    v.    Hoi-  Jones,   2()    Tex.    335:    White    v.    Van 

land.  102  Ind.  406,  69  N.  E.  R.  138.  Kirk,  25  Barb.    (N.  Y.)   10. 

"  Walker    v.    First    National    Bank,  A   carrier  may   show   that   the   ar- 

43  Ore.  102,  72  Pac.  635.  tides   receipted  in  the  bill   of  lading 

So  to  show  an  error  or  mistake  as  were  not  in  good  order.  Ellis  v.  Wil- 
to  the  quantity  of  goods.  Graves  v.  lard,  10  N.  Y,  529.  But  the  contract 
Howard,  9  Barb.  (N.  Y.)  477.  So,  embraced  in  the  bill  of  lading  can- 
where  it  is  signed  by  an  agent  to  not  be  contradicted  or  modified  by 
show  who  the  principal  is.  Goddard  parol  evidence.  Fitzhugh  v.  Winan, 
V.  Mullany,  52  Barb.  (N.  Y. )  87.  But  10  N.  Y.  559,  as  by  proof  of  custom, 
representations  made-  by  the  carrier  Simmons  v.  Law,  8  Bosw.  (N.  Y. ) 
before  the  bill  of  lading  was  exe-  213.  You  cannot  vary  or  contradict 
cuted,  as  to  the  depth  of  water  at  the  the  bill  of  lading  as  to  the  course 
place  of  landing,  cannot  be  given  in  designated  in  it  which  the  vessel  is 
evidence  by  him  to  excuse  his  liabil-  to  take.  So  a  clean  bill  of  lading, 
ity  for  a  loss  of  the  goods  or  injury  which  imports  that  the  goods  are 
thereto,  Shaw  v.  Gardner,  12  Gray  stowed  wider  deck,  cannot  be  varied 
(Mass.),  488;  nor  that  an  addition-  by  a  contemporaneous  parol  contract 
al  quantity  of  goods  should  be  car-  that  they  were  to  be  stowed  on  deck. 
ried.  Sayward  v.  Stevens,  3  id.  97;  Cherry  v.  Holly,  14  W^end.  (N.  Y.) 
or  that  the  rate  of  transportation  26;  Barber  v.  Brace,  3  Comi.  9. 
was  to  be  dependent  upon  the  price  '  Atwell  v.  Miller,  11  Md.  348. 
obtained  for  the  goods.  Gardner  v.  ^  Sanborn  v.  Chittenden,  27  Vt. 
Chase,  2  R.  I.  112;  nor  indeed  in  any  171;  Champlin  v.  Butler,  18  John, 
case  where  the  effect  of  the  evidence       (N.  Y. )    109;  Hazard  v.  Loring,    10> 


122 


Evidence. 


[Chap.  2. 


a  mere  bill  of  goods,  as  that  A.  bought  of  B.  certain  articles  at  a 
certain  price,  "six  per  cent,  off  for  cash,"  is  not  a  contract,  and  is 
open  to  parol  proof  to  show  any  fact  connected  with  and  material 
to  the  transaction.^  So  where  a  bill  of  sale  is  made  of  a  mill  the 
buyer  may  show  by  parol  that  certain  timber  not  mentioned  in  the 
bill  of  sale  was  included  in  the  purchase.^  Where,  however,  the 
bill  of  sale  is  in  the  nature  of  a  contract,  it  is,  like  all  other  con- 
tracts, presumed  to  embody  all  that  was  agreed  upon  between  the 
parties,  and  is  not  open  to  explanation  by  parol,  but  is  subject  to 
the  same  rules  in  this  respect  as  other  contracts.  Thus,  where  a 
sale  of  property,  reduced  to  writing,  contains  all  the  elements 
requisite  to  show  a  contract  between  the  parties,  but  contains  no 
warranty  of  the  goods,  parol  proof  is  not,  in  the  absence  of  fraud, 
admissible  to  show  a  warranty  in  fact.*  In  a  suit  between  other 
parties  it  may  be  shown  that  a  bill  of  sale  was  intended  as  a  mort- 
gage.^ 


Cush.  (Mass.)  260:  Havward  v.  Wal- 
lace, 4  Strobh.    (S.  C.)'   181. 

"Linslev  v.  Lnvelv,  26  Vt.  123; 
Silliman  v.  Tuttle.  45  Barb.  (N.  Y.) 
171;  Filkinj;  v.  Whvland.  24  X.  Y. 
338;  Dana  V.  Fiedler,  12  id.  40; 
Wentworth  v.  Buhler.  3  E.  D.  S.  (N. 
Y.  C.  P.)    30.5. 

'  Welever  v.  Advance  Shingle  Co., 
34  Wash.  331,  75  Pac.  863. 

*  Houorhton  v.  Carpenter,  40  Vt. 
588;  Jolliffe  v.  Collins.  21  Mo.  338; 
Hevward  v.  Wallace,  4  Strobh.  (S. 
C.)  181;  Pickard  v.  McCormick,  11 
Mich.  68. 

So  where  a  business,  with  all  the 
good  will  belonging  thereto,  is  con- 
veyed by  a  bill  of  sale,  parol  proof  is 
not  admissible  to  show  that  the  ven- 
dor agreed  not  to  establish  a  similar 
business  in  the  town,  Smith  v.  Gibbs, 
44  N.  H.  335;  or  to  .show  that  a  bill 
of  sale  was  merely  intended  as  a 
trust,  Owen  v.  Sharp,  12  Leigh 
(Va.),  427;  Trumbo  v.  Cartwright, 
A.  K.  Marsh.  (Ky.)  532;  or  that  it 
was  merely  intended  as  an  assign- 
ment, Frasier  v.  Sneath,  3  Nev. 
120;  or  that  a  sale  was  made  by 
two  persons  when  the  bill  of  sale 
Avas  only  executed  by  one.  Wren  v. 
Wardlaw,  Minor   ( Ala. ) ,  363  :  or  that 


it  was  given  merely  to  enable  the 
vendee  to  get  possession  of  the  prop- 
erty as  agent  of  the  vendor,  Mc- 
Clenney  v.  Floyd.  10  Te.x.  150:  or 
that  it  was  intended  to  embrace 
other  property  than  that  named 
therein,  McCloskey  v.  IMcCormick, 
37  111.  66 :  or  that  property  within 
its  provisions  was  in  fact  excepted, 
Harrell  v.  Dorrance,  9  Fla.  490:  nor 
to  .show  that  the  title  and  posses- 
sion of  the  property  was  not  to  vest 
in  the  vendee  immediatelv,  Rennell 
V.  Kimball,  5  Allen  (Mass.),  3.56; 
nor  in  fact  to  vary  in  any  respect  the 
terms  or  conditions  of  the  sale. 
Peaslee  v.  Stafford,  1  N.  Chip.  (Vt.) 
173;  Davis  v.  Moody,  15  Ga.  175. 
But  it  must  be  remembered  that,  in 
order  to  exclude  such  proof,  the  bill 
of  sale  must  contain  all  the  essential 
elements  of  a  contract,  leaving 
nothing  open  to  parol  proof.  As  to 
whether  it  is  a  contract  which  the 
courts  can  reasonably  construe;  is  a 
question  for  the  court.  Houghton 
V.  Carpenter,  40  Vt.  588;  Pickard  v. 
McCormick,  11  Mich.  68;  Linsley  v. 
Lovely,  26  Vt.    123. 

"  Pacific  Coast  Biscuit  Co.  v.   Dug- 
ger,  42  Ore.  513,  70  Pac.  523. 


Sec.  40.] 


Parol  Evidence  as  to  Writings. 


123 


Sec.  40.  Leases,  Deeds  and  Mortgages. 

It  is  not  competent  to  show  by  parol  that  certain  other  premises 
were  intended  to  be  included  in  a  lease,  or  that  certain  premises 
named  therein  were  intended  to  have  been  excluded,  or  to  add  to  it 
terms  not  therein  contained,^  or  to  show  that  more  or  less  rent  was 
agreed  upon.^  A  written  lease  may  not  be  waived  by  parol  evi- 
dence of  a  contemporaneous  oral  agreement  that  the  rent  was  to  be 
different  from  that  stated  in  it ;  or  that  it  was  to  be  apportioned  f 
or  that  it  was  to  be  paid  at  a  diffcTcnt  time  from  that  named  in  the 


*  Barton   v.   Dawes,   10   C.   B.   261; 
Meres  v.  Ansell,  3  Wils.   275;      Nor- 
ton  V.    Webster,    12    Ad.    &    El.    -442; 
Hope  V.  Atkins,  1  Price,  143.     Where 
tlie   lease   contains   no   warranty,   ex- 
press  or    implied,    that   the   premises 
are  fit  for  occupation,  it  is  not  com- 
petent to  show  that  the  landlord  rep- 
resented them  to  be  so.       Button   v. 
Gerrish,  9  Cush.    (Mass.)    89.    Where 
an  assignment  of  a  lease  is  made  in 
wi'iting,  it  is  not  competent  to  show 
that   the  assignee   agreed  to   pay  the 
accrued    rent.     Graves   v.    Porter,    11 
Barb.    (N.    Y.)     192.     Where  a   lease 
abrogates   a    previous   written    agree- 
ment,   it    is    not   competent    to    show 
that  it  was  not  intended  to  have  that 
efiect.       Tibbetts  v.   Percy,   24   Barb. 
(N.  Y.)    39.     Under   a   lease   of   coal 
mines,    containing    no    stipulation    as 
to  the  quantity  of  coal  to  be  mined, 
but   fixing  a   certain   sum   per  bushel 
as    the    rent    to   be    paid,    parol    evi- 
dence is  not  admissible  to   show  that 
the   lessee    agreed    to   mine   any   par- 
ticular quantity,  or   even  all   that  he 
could.     Lyon   v.   Miller,   24   Penn.   St. 
392.     When  a  party  seeks  to  enforce 
a  written   contract,  although   the  de- 
fendant  cannot    introduce    parol    evi- 
dence to  alter  or  vary  it,  yet,  if  the 
plaintiff  introduces   evidence  as  to   a 
contract  not  embraced  in  the  writing, 
the  defendant  is  at  liberty  to  intro- 
duce evidence  of  a   different  contract 
for  the  purpose  of   contradicting  the 
plaintiff's   evidence,    although    it   has 
the   effect   to  vary  the   terms   of  the 
written    contract.      Arbeiter    v.    Day, 
38    Conn.    155.     Where    there    is    no 
latent   ambiguity,    parol    evidence    is 


not  admissible.  Thus,  where  lands 
leased  were  bounded  on  the  north 
line  of  a  town,  parol  evidence  was 
held  inadmissible  to  show  that  a 
different  line  had  been  understood 
by  the  parties  to  be  the  true  bound- 
ary. So  where  a  lease  was  in  writ- 
ing, and  there  were  only  two  excep- 
tions therein,  it  was  held  that  it 
could  not  be  shown  by  parol  that  the 
lessor  intended  to  make  still  another, 
Haney  v.  Newton,  7  Pick.  (Mass.) 
29 ;  and  generally  it  may  be  said 
that  parol  evidence  is  not  admissi- 
ble to  prove  an  agreement  that  di- 
rectly contradicts  the  lease,  Junger- 
man  v.  Bovee,  19  Cal.  354;  Carpen- 
ter V.  Shanklin,  7  Blackf.  (Ind. ) 
308 ;  or  that  it  was  intended  to  have 
a  different  effect  from  that  which  it 
purports  to  have,  as,  that  it  was  in- 
tended as  a  mortgage,  Stewart  v. 
Murray,  13  Minn.  42G;  or  that  it 
was  understood  that  the  lessee  might 
occupy  the  premises  for  any  pur- 
pose, when  the  use  was  specially 
restricted  in  the  lease.  Sientes  v. 
Odier,  17  La.  An.   153. 

"  A  written  •  lease  may  not  be 
varied  by  parol  evidence  of  a  con- 
temporaneous oral  agreement  that 
the  rent  was  to  be  different  from 
that  stated  in  it.  Merchants'  State 
Bank  v.  Knettell,  12  N.  D.  519,  97 
N.  W.  853. 

^Flinn  v.  Calow,  1  M.  &  G.  589; 
Preston  v.  Merceau,  2  W.  Bl.  1249. 
But  if  no  rent  is  named  in  the  lease, 
parol  evidence  is  admissible  to  show 
what  rent  was  agreed  upon.  King 
v.  Woodruff,  23  Conn.  56. 


124 


Evidence. 


[Chap.  2. 


lease  ;*  or  that  the  lease  was  to  commence  at  a  later  date  j"  or  that 
the  tenant  was  to  pay  the  taxes,  etc.  f  or  that  other  rights  and  priv- 
ileges than  those  named  in  the  lease  were  given  f  or  that  the  land- 
lord agreed  to  repair  the  premises  f  or,  indeed,  where  the  lease  is 
explicit,  is  parol  evidence  ever  admissible  to  aid  in  its  construc- 
tion.^ Where  a  Avritten  lease  contains  a  covenant  by  the  lessee  to 
"write  $400  insurance  on  building,"  parol  evidence  is  inadmissible 
to  show  an  oral  agreement  that  the  lessee  was  to  maintain  this  in- 
surance during  his  occupancy.  The  court  finds  that  insurance  was 
a  matter  covered  in  the  lease  and  to  admit  proof  of  a  collateral 
agreement  "it  must  appear  that  the  alleged  collateral  promise  re- 
lates to  a  subject  distinct  from  that  to  which  the  writing  relates."^'' 
A  lease  of  gas  rights  cannot  be  varied  by  evidence  of  a  contempor- 
aneous parol  agreement  that  the  lease  should  be  forfeited  whenever 
the  lessee  should  fail  to  furnish  gas  for  certain  purposes.^^  But 
where  part  of  the  rent  under  a  lease  was  "  to  be  worked  out  on  farm 
at  one  dollar  per  day"  parol  evidence  is  admissible  to  show  when, 
and  what  kind  of  work  was  to  ,b€  done  under  a  contemporaneous 


*Tlnis,  in  Carpenter  v.  Shanklin, 
7  Blackf.  (Ind.)  308,  by  lease  of  real 
e&tate  executed  by  the  lessor  and 
lessee,  under  their  seals,  for  one 
year,  the  time  fixed  for  the  payment 
of  the  last  half  year's  rent  was  Feb- 
ruary 1,  1841.  "  It  was  held,  that 
parol  evidence  that  the  said  rent  was 
not  due  until  March  1,  1841,  was  in- 
admissible: also,  that  the  landlord, 
in  such  case,  had  a  preference  for 
said  rent  over  an  execution  levied 
February  1,  1841,  on  the  tenant's 
goods. 

^Henson  v.  Cooper,  3  Scott's  N.  R. 
48. 

«Eich  V.  Jackson,  4  Br.  P.  C.  C. 
514,  cited  and  reported  in  full  in 
note  c,  G  Ves.  334. 

'Jungerman  v.  Bovee,  19  Cal. 
354;  Sientes  v.  Odier,  17  La.  An. 
153.  But  where  the  lease  provides 
that  he  shall  hold  the  lease  subject 
to  "  Manor  regulations,"  or  "  mu- 
nicipal regulations."  etc.,  the  lessee 
may  show  by  parol  what  &uch_  regu- 
lations are.  "^Dorsey  v.*  Eagle.  7  G.  & 
J.  (Md.)  321.  Where  certain  spe- 
cific exceptions  are  made  in  a  lease, 
it  cannot  be  shown  by  parol  that 
other   exceptions    were    agreed    upon. 


Ilovey    v.    Newton,    7    Pick.    (Mass.) 
29. 

» Mayer  v.  Muller,  1  Hilt.  (N.  Y. 
C.  P.)  401;  Post  V.  Vetter,  2  E.  D. 
S.  (X.  Y.  C.  P.)  248;  New  York  v. 
Price,  5  Sandf.  ( N.  Y.  Sup.  Ct. )  542 ; 
Howard  v.  Thomas,  22  Ohio  St. 
201.  Where  a  lease  is  silent  on  the 
question  of  repairs,  evidence  of  a  con- 
temporaneous agreement  that  the 
landlord  should  make  certain  repairs 
prior  to  occupation,  is  not  admissible 
as  such  agreement  is  not  collateral 
to  the  lease  but  part  of  the  bargain 
to  rent  the  property.  Tliompson 
Foundry  &  ^Machine  Works  v.  Glass, 
135  Ala.  GG9.  G72,  33  So.  811.  But 
where  a  written  lease  shows  only  the 
obligations  of  the  tenant  a  contem- 
poraneous parol  agreement  may  be 
proved  to  the  effect  that  the  landlord 
was  to  put  the  premises  in  safe  con- 
dition, nines  y.  Willcox,  96  Tenn. 
148,  33  S.  W.  914,  54  Am.  St.  Rep. 
823. 

*2  Best  on  Evidence  (Wood's  ed.), 
note,  page  888. 

"Johnson  v.  Kindred  State  Bank, 
12  N.  D.  336,  96  N.  W.  588. 

"  Rose  y.  Lanyon  Zinc  Co.,  68  Kan. 
126,   74   Pac.   625. 


Sec.  40.] 


Parol  Evidence  as  to  Writings. 


125 


parol  agreement.^^  ^Miere  a  lease  is  made  by  several  owners  of  gas. 
lands,  and  royalties  for  gas  produced  are  to  be  paid  to  the  "  parties 
of  the  first  part  "  who  arc  the  lessors,  parol  evidence  is  admissible 
to  show  that  by  a  contemporaneous  parol  agi-eement  between  the 
lessors  these  royalties  were  to  be  paid  to  the  owner  of  the  parcel  of 
land  on  which  the  gas  should  be  produced."  Where  a  seal  is  un- 
necessary, as  on  a  lease,  its  presence  does  not  ipso  facto  bar  the  in- 
troduction of  parol  evidence.^*  But  as  previously  stated,  there  are 
•exceptions  to  the  nile,  and  in  addition  to  those  exceptions  it  may 
l)e  said  that  parol  evidence  is  always  admissible  to  defeat  the  lease, 
as,  to  show  that  it  was  made  for  an  illegal  purpose,^'  or  that  certain 
formalities  required  by  law  were  not  observed  ;^®  or,  indeed,  fraud 
or  anything  that  tends  to  show  that  the  deed  is  void  in  law  may  be 
shown. ^^  So,  too,  it  is  competent  to  show  by  parol  evidence  to  what 
premises  the  lease  applies,  when,  although  the  lease  upon  its  face 
is  clearly  enough  expressed,  yet  an  ambiguity  arises  from  extrinsic 
circumstances.^^^ 


"Infjram  v.  Dailey,  123  Iowa,  188, 
•98  N.  W.  627. 

'=  Rvnier  v.  South  Penn.  Oil  Co.,  54 
W.  Va.  530,  46  S.  E.  559. 

"Woolsev   V.   Henke    (Wis.,    1905), 
103  N.  W.  267. 

"Doe  V.  Allen,  8  T.  R.  148;  Rex  v. 
Northwingfield,  1  B.  &  Ad.  912; 
Lightfoot  V.  Tenant,  1  B.  &  P.  555. 
Where  fraud  or  illegality  are 
averred,  parol  evidence  is  always  ad- 
missible to  establish  it.  whatever 
may  be  its  effect  upon  the  contract. 
Thus,  it  may  be  shown  that  a  ma- 
terial part  of  the  contract  has  been 
inserted  or  altered  by  the  fraud  of 
the  other  party.  Baltimore  Steam- 
boat Co.  v.  Brown,  54  Penn.  St.  77  ; 
Pierce  v.  Wilson,  34  Ala.  596;  Town- 
send  V.  Cowlcr,  31  id.  428;  Hunter 
V.  Biglyon,  30  111.  228;  Hamilton  v. 
Congers,  28  Ga.  276:  Sanford  v. 
Handy,  23  Wend.  (X.  Y.)  126:  Akin 
V.  Driimmond.  2  La.  An.  92;  Gatting 
V.  Newell,  9  Ind.  572;  Davis  v. 
Stern,  15  La.  An.  177;  Bartle  v.  Vos- 
burg,  2  Grant's  Cas.  (Penn.)  277; 
Selden  v.  Myers,  20  How.  (U.  S.) 
506;  or  that  the  other  party  by 
fraud  has  prevented  the  reduction  of 
the  whole  contract  to  writing.  Phyfe 
V.  W^irdwell,  2  Edw.  Ch.  ( N.  Y.) 
47;   Elliott  v.   Conwell,   13   Miss.   91; 


\^'esley  v.  Thomas,  6  H.  &  J.  (Md.) 
24 ;  Kennedv  v.  Kennedy,  2  Ala.  571; 
Chetwood  v.  Britain,  ,2  N.  J.  Eq. 
438 ;  Sull  V.  Cass.  43  N.  H.  62 ;  Mar- 
tineau  v.  M*ay,  18  Wis.  54.  As  to 
proof  of  illegality,  see  Lazare  v. 
Jacques,  15  La.  An.  599;  Corbin  v. 
Sistrunk,    19  Ala.   203. 

'"Kelfe  V.  Ambrosse,  7  T.  R.  551. 

"Goodwin  v.  Hubbard,  15  Mass. 
219;  Bover  v.  Grundv,  3  Pet.  ( U. 
S.)  219;  "Russell  v.  Rogers,  15  Wend. 
(N.  Y.)  351;  Prentiss  v.  Russ,  16 
Me.  30 ;  Wren  v.  Woodrow,  1  Ala. 
303.  Where  fraud  is  alleged,  any 
consideration  or  fact,  however  con- 
trary to  the  averment  of  a  deed,  may 
be  proved  to  show  the  fraudulent  na- 
ture of  the  transaction.  Roscoe's  Ev. 
(13th  ed.)  22;  Paxton  v.  Popham,  9 
East,  421;  for  fraud  is  an  extrinsic 
and  collateral  matter  that  avoids  all 
transactions,  and  the  same  is  true  as 
to  illegalitv.  Chandler  v.  Ford,  3 
Ad.  &  El.  "^649 ;  Collins  v.  Blantern, 
2  Smith's  S.  C,  notes. 

i"a  Thus,  where  the  lease  is  of  "The 
Lanier  House,"  it  is  competent  to 
show  what  premises  are  connected 
and  used  with  it,  and  what  extent  of 
building  and  grounds  are  included 
under  the  expression,  and  testimony 
as  to  what  was  ordinarily  meant  in 


126 


Evidence. 


[Chap.  2. 


But,  if  the  description  of  the  premises  of  itself  affords  ample 
roeans  of  ascertaining  or  defining  the  premises  intended  to  pass, 
it  is  not  competent  to  show  by  parol  that  the  lease  was  intended 
to  apply  to  other  premises,  even  though  there  are  errors  or  incon- 


that  locality  by  the  words  is  admis- 
sible, Harris  v.  Dub,  .57  Ga.  77 ; 
Sargent  v.  Adams,  3  Gray-  (Mass.), 
72;  or  what  premises  are  understood 
to  be  embraced  in  the  words  "  my 
home  farm."  or  any  other  general  de- 
scription of  premises.  Hutchins  v. 
Scott,  2  M.  &  W.  816;  Hutchins  v. 
Groom,  5  C.  B.  51.5.  Where  there 
was  an  agreement  in  writing  to  lease 
for  a  term  of  years  "  The  Adams 
House,  situate  on  Wasliington  street, 
Boston,"  it  was  held  that  it  might 
be  proved  by  parol  to  have  been  in- 
tended by  the  parties  to  include  only 
so  much  of  the  building  as  was  fitted 
up  as  a  hotel,  by  the  name  of  the 
Adams  House,  and  not  the  separate 
shops  which  occupied  the  whole  of 
the  ground  floor,  except  the  entrance 
to  the  hotel.  Sargent  v.  Adams,  3 
Gray  (Masif. ),  72.  Whetlier  certain 
premises  are  or  are  not  embraced  in 
the  lease,  when  the  lease  does  not  ex- 
plicitly describe  them,  is  always  open 
to  parol  proof.  Crawford  v.  Morris, 
5  Gratt.  (Va.)  90;  Guy  v.  Barnes, 
29  Ind.  103;  Corbett  v.  Costello,  8 
La.  An.  427;  D'Aquin  v.  Barbour,  4 
id.  441.  In  Chamberlain  v,  Letson, 
5  N.  J.  L.  152,  the  lease  demised  a 
"  house  and  lot  containing  three 
acres,  more  or  less."  The  lessee 
claimed  seven  acres,  the  whole  being 
in  one  lot  not  separated  by  a  fence. 
Parol  evidence  was  admitted  to  show 
that  the  original  lot  connected  with 
the  house  was  about  three  acres; 
that  the  lessor  added  about  four 
acres  by  purchase,  and  occupied  the 
whole  at  the  time  of  the  demise,  and 
that  the  lease  was  intended  by  the 
parties  to  cover  only  the  original 
three  acres,  visible  remains  of  the 
old  original  line  being  still  visible. 
A  call  in  a  grant  for  a  line  begin- 
ning at  the  "  north  corner  of  R.'s 
store."  where  the  store  stands 
squarely  east  and  west  and  has  tico 
north  corners,  is  a  latent  ambiguity 
and  may  be  explained  by  parol  proof. 
Lawrence  v.  Hynian.  79  X.  C.  209. 
Thus,     a     building     misdescribed     as 


number  38,  may  be  shown  in  fact  ta 
mean  number  35.  Hutchins  v. 
Scott,  ante.  And  even  thougli  such 
a  lease  was  void  to  create  any  inter- 
est, if  the  tenant  went  into  posses- 
sion of  the  premises  intended,  it 
would  be  admissible  to  prove  the 
terms  of  the  tenancy.  Bealand  v. 
Hurst,  3  Starkie,  (JO.  f]specially 
would  this  be  so,  if  it  was  shown 
that  the  lessor  owned  number  35, 
and  did  not  own  number  3S.  and  that 
the  tenant  had  gone  into  possession 
of  35  under  the  lease.  But  if  the 
landlord  owned  both,  and  there  was 
nothing  in  the  lease  to  indicate  that 
35  instead  of  38  was  intended,  and 
the  tenant  had  not  gone  into  posses- 
sion under  the  lease,  it  would  not  be 
competent  in  a  court  of  law  to  show 
that  35  was  intended.  Where  a 
giant  is  in  general  terms,  the  addi- 
tion of  particular  terms  operates  as 
a  restriction  and  limitation  upon  the 
grant.  Thus,  if  a  lease  is  of  "  the 
premisses  on  the  corner  of  College  and 
Centre  street,"  the  whole  of  the 
premises  there  situated  owned  by  the 
lessor  will  pass;  but  if,  in  addition 
thereto,  the  words  "  recently  occu- 
pied b\'  E.  Laporte  as  a  French  ho- 
tel "  are  added,  the  latter  clause  lira- 
its  the  grant  to  such  part  of  the 
premises  as  were  occupied  by  E.  La- 
porte for  a  French  hotel,  and  no 
more  and  no  less  will  pass.  There- 
fore, the  extent  of  the  grant  being 
rendered  uncertain  by  such  restrict- 
ive clause,  parol  evidence  is  admis- 
sible to  show  what  part  of  the  premi- 
ses was  occupied  by  E.  Laporte  for  a 
French  hotel,  and  thus  to  define  the 
extent  of  the  demise.  Alger  v. 
Kennedy,  49  Vt.  109,  24  Am.  Rep. 
117.  See,  also,  Nutting  v.  Herbert, 
35  N.  H.  125:  Connolly  v.  Vernon, 
5  East.  51.  See.  also,  to  the  'same 
efl'ect.  Bell  v.  Sawyer,  32  N.  H.  72; 
Tennev  v.  Beard.  5  id.  58 :  Hibbard 
v.  HuVlburt,  10  Vt.  173:  Sargent  v. 
Adams.  3  Grav  (Mass.).  72:  Mitchell 
V.  Stevens,  I'Aik.  (Vt.)  161:  Put- 
nam V.  Smith,   4  Vt.   622.     In  Free- 


Sec.  40.]  Parol  Evidence  as  to  Writings.  127 

sistencies/^  and  the  actual  intention  of  the  parties  is  in  opposition 
to  the  strict  letter  of  the  lease.'^  It  is  not,  however,  permissible  to 
aid  an  inherently  insufficient  description  in  a  lease  by  parol  evi- 
dence of  what  the  parties  intended  to  include  therein.^** 

Where  the  language  of  a  lease  is  illegible  from  age  or  other 
causes,  and  the  construction  is  doubtful  from  antiquity,  parol  evi- 
dence is  admissable  to  show  what  its  provisions  are,  as  w^ell  as  to 
aid  in  its  construction  in  any  doubtful  matter.^^  So  parol  evidence 
is  admissible  to  explain  a  latent  ambigiuty  in  a  deed  or  lease.  ^  It 
is  a  rule  of  construction  that  in  order  to  arrive  at  the  real  intention 
of  the  parties,  and  to  make  a  correct  application  of  the  words  and 
language  of  the  contract  to  the  subject-matter  thereof,  and  the 
objects  professed  to  be  described,  all  the  surrounding  facts  and  cir- 
cumstances may  be  taken  into  consideration.  "The  law  does  not 
deny  to  the  reader  the  same  light  and  information  that  the  writer 
enjoyed ;  he  may  acquaint  himself  with  the  persons  and  circum- 
stances that  are  the  subjects  of  the  allusions  and  statements  in  the 
wa-itten  agreement,  and  is  entitled  to  place  himself  in  the  same 
situation  as  the  party  who  made  the  contract,  to  view  the  circum- 
stances as  he  viewed  them,  and  so  judge  of  the  meaning  of  the 

land  V.  Burt,  1  T.  R.  701,  the  demise  the  instiffiency  of  the  description  or 
was  of  certain  premises  in  Westmin-  the  inconsistency  of  two  or  more 
ster  "  late  in  the  occupation  of  A.,"  parts  of  the  description,  the  con- 
particularly  describinjj  thoni.  and  was  struction  put  upon  the  grant  by  the 
held  to  extend  only  to  such  part  of  the  parties  in  locating  the  premises  may 
premises  as  A.  occupied,  and  a  cellar  be  resorted  to.  See,  also;  McLaugh- 
under  the  yard  belonging  to  the  prem-  lin  v.  Bishop,  3.5  id.  .512;  Thomson 
ises,  which  was  in  the  possession  of  v.  Wilcox,  7  Lans.  (N.  Y.)  370.  See 
■  another  tenant,  was  held  not  em-  §  17,  ante,  as  to  description  of  real 
braced    in    the   grant;    and    in    eject-  estate. 

ment   for   the    premises,    it   was   held  '*  Vose  v.   Bradstreet,  27  Me.    156; 

that   the   landlord   might   show   what  Norwood    v.    Byrd,    1    Rich.     (S.    C.) 

part  of  the  premises  A.  occupied,  and  135;  Phillips  v.  Castley,  40  Ala.  486; 

that   the    cellar    did    not   pass    under  Todd  v.  Philhamer,  24  N.  J.  L.  796; 

the  grant.     In  Jackson  v.  Ferine,  35  McLaughlin   v.    Bishop,    35   N.   J.    L. 

N.    J.    L.    137,    the   court   laid    down  512;   Eggleston  v.  Bradford,  10  Ohio, 

•the  rule,  that  where  the  language  of  312;      Cami^bell   v.   Johnson,   44   Mo. 

the  grant  admits  of  but  one  construe-  247 ;   Bratton   v.    Clawson,    3    Strobh. 

tion,  and    the   location    of   the   prem-  (S.   C. )    135. 

ises    intended    to   be    conveyed    is    al-  J'  Tracy  v.  Albany  Ex.  Co.,  7  N.  Y. 

ready  ascertained  by  a  description  in  474. 

the  deed,   either   by   courses  and   dis-  ^"Description      "beginning      eighty 

tances    or    monuments,    no   other    ex-  rods   easterly   of   the   southwest   part 

position  derived  either  from  the  Ian-  of    my    farm,"   void    for    uncertainty, 

guage  or  acts  of  the  parties  is  admis-  Goodsell  v.  Rutland-Canadian  R.  Co., 

sible;      but,    ichcre    the    language    is  74  Vt.  206,  50  A.  7. 

equivocal,    and    the    location    of    the  "  Best  on  Evidence,  198,  n.  a. 
premises  is  made  doubtful,  either  by 


128 


Evidence. 


[Cliap.  2. 


words  and  of  the  correct  application  of  the  language  to  the  things 
described."^^ 

From  the  admission  of  snch  evidence,  and  from  bringing  the 
words  of  the  written  instrument  into  contact  with  surroundmg 
circumstances,  a  doubt  sometimes  arises  as  to  the  correct  applica- 
tion of  the  language  and  words  used  to  the  subject-matter  of  the 
contract  and  the  objects  professed  to  be  described ;  this  is  called  a 
latent  amhiguity,  because  it  is  not  apparent  upon  the  face  of  the 
contract,  but  arises  from  the  application  of  the  words  to  the  objects 
to  which  thev  refer.  "As  this  ditRcultj  or  ambiguity  is  introduced 
solely  by  the  admission  of  extrinsic  evidence  of  surrounding  cir- 
cumstances, it  may  be  rebutted  and  removed  by  the  production  of 
further  evidence  of  the  identity  of  the  objects  described,  in  oc- 
cordance  with  the  ancient  maxim,  'Amhiguitas lerhorum  latens, 
verificatione  suppletiir ;  nam  quod  ex  facto  oritur  amhiguum 
verifcationc  facti  toUltur.'  "'^    The  written  instrument  may  also, 


"Shore    v.    Wilson,    9    CI.    &    Fin. 
555,  569. 

A    lease    had    been    made    by    the 
plaintiff  to  the  defendant,  of  part  of 
a  messuage,  together  with  a  piece  of 
ground    thereunto    adjoining.        This 
piece  of  ground  was  used  as  a  yard, 
and  beneath  the  surface  thereof  was 
a.   cellar,   occupietl   by   a    tliird   party 
under   a   lease   previously  granted   to 
him    by   the   plaintiff.     The   occupant 
of   the   cellar   continued  to   reside   in 
it,   and   to   pay   rent  to  the    plaintiff 
for  three  or  four  years  after  the  lat- 
ter had  demised  the  yard  to  the  de- 
fendant, but  his  lease'having  expired, 
and  he  having  quitted  the  cellar,  the 
defendant  took   possession   of   it,  con- 
tending that  the  cellar  had  passed  to 
him  by  the  demise  of  the  yard,  upon 
the     maxim     of     the     common     law, 
■"  Cujus  est  solum,  ejus  est  usque  ad 
coelum   et    ad    inferos,"  and  that  the 
plaintiff  w^as  estopped  from  introduc- 
ing parol  evidence  to  control  or  qual- 
ify the  operation  of  the  lease;      but 
the  court  held  that  parol  evidence  of 
the  surrounding  circumstances  might 
properly    be    brought    in    aid    of    the 
construction     and     interpretation     of 
the   lease.     "  The  only  question,"   ob- 
serves AsHURST,  J..  "  is  whether  the 
court    are    absolutely    bound    by    the 
terms  of  this  lease  to  put  the  con- 


struction upon  it  for  which  the  de- 
fendant contends.  Prima  facie,  in- 
deed, the  property  in  the  cellar 
would  pass  by  the  demise,  but  tliat 
might  be  regulated  and  explained  by 
circumstances,  and  it  seems  to  me 
that  the-  construction  of  all  deeds 
must  be  made  with  reference  to  their 
subject-matter,  and  it  may  be  neces- 
sary to  put  a  different  construction 
upon  leases  made  in  populous  cities 
from  that  on  those  made  in  the  coun- 
try; we  know  that  in  London  differ- 
ent persons  have  several  freeholds 
over  the  same  spot,  and  that  differ- 
ent parts  of  the  same  house  are  let 
out  to  different  people."  Freeland 
v.  Burt.  1  T.  R.  70:?;  Press  v.  Parker, 
10  Moore,  158;  Wigram,  39,  58  (2d 
ed.),  20  Law  J.  Q.  B.  67. 

^''TiNDAL,  C.  J.,  Miller  v.  Travers, 
1  M.  &  Sc.  345,  Bac.  Max.  23. 

This  may  be  illustrated  and  exem- 
plified by  a  case  analogous  to  the  one 
mentioned  by  Pothier.  "  You  rent 
of  me  an  apartment  in  a  house,  the 
remainder  of  which  is  occupied  by 
myself.  I  make  you  a  new  lease  in 
these  terms :  '  I  agree  to  let,  and  A. 
B.  agrees  to  occupy  my  house  in 
Frederick  street,  for  the  term  of  two 
years  from  the  date  hereof,  at  the  an- 
nual rent  of  20/.'  Any  one  on  read- 
ing   this    agreement    would    imagine 


Sec.  40.] 


Parol  Evidence  as  to  Writings. 


129 


on  the  face  of  it,  be  perfectly  intelligible,  and  free  from  all  doubt 
and  obscurity,  but  from  some  of  the  circumstances  admitted  -in 
proof,  an  ambiguity  arises,  as  to  which  of  two  or  more  things,  or 
which  two  or  more  persons,  each  answering  the  words  of  the  writ- 
ing, the  parties  intended  to  designate.  There  may,  for  example, 
be  two  estates,  or  two  persons  of  the  same  name  and  description, 
and  the  words  may  equally  apply  to  either.  This  doubt  or  dif- 
culty,  which  has  been  created  by  parol  evidence,  may  be  removed 
by  further  evidence  of  a  like  character,  calculated  to  explain  which 
of  the  estates  or  persons  is  embraced  by  the  description  in  the 
written  instrument.^*     But  the  evidence,  when  introduced,  must 


that  the  whole  house  was  intended  to 
be  demised,  but  when  evidence  of  ex- 
trinsic circumstances  is  admitted, 
for  the  purpose  of  applying  the  lan- 
guage of  the  contract  to  the  subject- 
matter  thereof,  a  doubt  at  once 
arises,  whether  it  was  intended  that 
you  should  have  the  whole  house  or 
the  mere  apartment  which  you  had 
previously  occupied;  and  this  doubt, 
which  is  suggested  purfily  by  extrin- 
sic evidence  of  the  relative  situations 
and  circumstances  of  the  parties  at 
the  time  of  the  making  of  the  con- 
tract, may  be  removed  by  parol  evi- 
dence of  other  circumstances  calcu- 
lated to  explain  the  sense  in  which 
the  words  were  used,  and  to  give 
them  a  correct  application." 

"Gord  V.  Needs,  2  M.  &  W.  140; 
Hiscocks  V.  Hiscocks,  5  M.  &  W.  368 ; 
Wigram,  pp.  86,  88.  See  Hammond 
V.  Ridgely,  5  H.  &  J.  (Md.)  255; 
Lowell  V.  Parkhurst,  4  Wend.  (N. 
Y. )  369.  In  Crawford  v.  Morris,  5 
Graft.  (Va.)  90,  where  there  was  a 
written  agreement  to  renew  a  lease, 
it  was  held  that  parol  evidence  was 
admissible  to  show  that  the  cellar 
of  an  adjoining  tenement  had  been 
occupied  with  the  premises  to  which 
the  lease  applied,  and  ivas  necessary 
for  the  prosecution  of  the  tenant's 
business,  for  the  purpose  of  showing 
that  it  was  included  in  the  lease  to 
be  renewed.  In  Midlothian,  &c.,  Co. 
V.  Finney,  18  Gratt.  (Va.)  304.  the 
lessor,  about  six  months  after  giving 
a  lease  of  certain  coal  mines  for  a 
term,  indorsed  upon  the  lease  a 
lease  of  adjoining  coal  lands  for  the 


residue  of  the  term,  declaring  it  to 
be   a   part  of  the  original   lease,   and 
after    such    indorsement,    and    before 
the    terra   expired,    he    agreed    to   re- 
new   the    lease.     Parol    evidence   was 
held   admissible   to   show  whether   or 
not   the   lands   of   the    indorsed    lease 
were  intended  to  be  embraced  in  the 
renewal.       In  Wing  v.   Gray,  36   Vt. 
261,  there  was  a  clause  in  the  lease 
as   follows:      The   lessee  "is   to   have 
all     the     personal     property    on     the 
farm,"    and    it   was    held    that    parol 
evidence     was     admissible     to     show 
whether  it  was  meant  that  he  should 
have  the  use  of  the  property,  or  that 
it    should    be   his   absolutely.        In   a 
New    York    case    the    defendant    C, 
having  a  lease  of  a  store,  underlet  to 
A.  the  whole  of  the  first  floor  except- 
ing a  portion  thereof  which  was  then 
partitioned   off,   and   which    consisted 
of     the    stairway,    with    a    hatchway 
HI  front,  leading  to  the  upper  stories 
of    the    building.        There    were    two 
doors   in   the   front,   the   one    opening 
opposite  the  stairway  and   the   other 
into     the     lower     room,    into     which 
there  was  also  access  through  a  door 
in   the   partition.        The   undertenant 
A.,    with    the    consent    of    his    lessor, 
removed    the    partition,    agreeing    to 
restore    it  when   requested   so   to   do. 
Afterwards,  A.  sold  out  to  the  plain- 
tiff   S.,    with    wliom    the    defendant 
agreed  in  writing  that   "  the   present 
lessee  and  occupant  of  the  first  floor 
of    the    house    may    continue    to    use 
and     occupy     the     said     premises    as 
long    as    I     hold    the  lease    thereof." 
In   an  action    brought   by   S.    to    re- 


130  Evidence.  [Chap.  2. 

have  the  effect  of  rendering  the  words  and  hmguage  of  the  docu- 
ment certain  and  manifest,  and  must  leave  no  doubt  as  to  tbe  cor- 
rect application  of  them,  and  the  precise  object  to  which  they  were 
intended  to  refer ;  for  parol  evidence  is  inadmissible  to  ascertain, 
and  establish  the  intention  as  an  indej^endent  fact.  The  judgment 
of  the  court  in  expounding  a  deed  nmst  be  simply  declaratory  of 
what  is  in  the  deed  ;  it  has  to  ascertain,  not  what  the  party  intended, 
as  contradistinguished  from  what  the  words  express,  but  what  is 
the  meaning  of  the  words  he  has  used.*"  And  when  the  words  of 
any  written  instrument  are  free  from  ambiguity  in  themselves,  and 
where  external  circumstances  do  not  create  any  doubt  or  difficulty 
as  to  the  proper  ajjplication  of  those  words  to  clainiauts  under  the 
instrument,  or  the  subject-matter  to  which  the  instrument  relates, 
the  instrument  is  always  to  be  construed  according  to  the  strict, 
plain  and  common  meaning  of  the  Avords  themselves;  and  evidence 
dcliors  for  the  purpose  of  explaining  the  instrument  according  to 
the  surmised  intention  of  the  parties  is  inadmissible.  But  to  ex- 
plain a  patent  ambiguity,  parol  evidence  is  never  admissible,  what- 
-ever  doubt  may  exist  as  to  the  intention  of  the  parties.  Thus,  if  a 
blank  is  left  in  a  lease  or  deed,  unless  it  can  be  filled  from  infer- 
ences drawn  from  the  instrument  itself,  it  must  remain  blank,  and 
cannot  be  cured  by  extrinsic  evidence  as  the  substantive  law  re- 
quires a  writing.^* 

It  may  be  shown  that  the  lease  was  made  for  the  benefit  of  a 
person  other  than  the  lessor,  as,  where  a  lease  was  made  by  an  ad- 
ministrator in  his  own  name,  that  it  was,  in  fact,  made  for  the 
benefit  of  the  estate.^^  So,  where  no  time  when  the  lease  shall  com- 
mence is  named  therein,  it  is  competent  to  show  what  time  was 
fixed  upon  by  parol  r'^  or  that  the  lease  was  in  fact  executed  upon 
a  different  day  from  that  named  in  the  lease  f^  or  that  it  has  been 
suiTendered  ;^°  or  when  the  lessee  actually  took  possession.^^  So 
it  is  competent  to  show,  by  parol,  that  the  landlord  knew  the  pur- 
cover  damages  against  C.  for  putting  "'Baylis  v.  Church,  2  Atk.  239; 
up  the  partition,  it  was  held  that  Strode  v.  Russell,  2  Vem.  624.  See, 
parol     evidence,     showing     that      the       further  § 

plaintiff    took    the    agreement     from  "Russell  v.  Erwin.  41   Ala.  292 

the    defendant    with    the    knowledge  =' Leggett  v.  Harding.   10   Ind.  414. 

of  what  were  the   rights  and  obliga-  "Hall    v.    Huffman.    32    !\Io.    ol9; 

lions  of  A.,   the  first  undertenant  in       Trustees  v.  Robinson,  Wright  (Ohio), 
the    premises,    was    competent.     Stef-       436. 

fens  V.  Collins,    6  Bosw.   (N.  Y.)   223.  '"Mairs  v.  Sparks.  5  N.  J.  L.   513. 

"13  Law  J.  X.  S.    (Exch.)    365.  ''Den  v.  Hamilton,  12  N.  J.  L.  109. 


Sec.  40.]  Parol  Evidence  as  to  Writings.  131 

pose  for  which  the  lessee  intended  to  occupy  the  premises,  unless 
the  character  of  the  occupancy  is  expressly  restricted  in  the  lease, 
or  that  the  lessee  knew  their  condition,  or,  in  the  case  of  a  sub- 
tenant, that  he  knew  the  conditions  of  the  lease  under  which  the 
original  tenant  holds.^^  Where  in  a  lease  it  is  stipulated  that  the 
lessee  ''shall  have  all  the  personal  property,"  it  is  proper  to  show, 
by  parol,  whether  he  was  to  have  it  absolutely,  or  only  the  use  of 
it.^^ 

Customary  riglits  and  incidents  universally  attaching  to  the  sub- 
ject-matter of  the  contract  in  the  place  and  neighborhood  where  the 
contract  was  made,  are  impliedly  annexed  to  the  written  language 
and  terms  of  the  contract,  unless  the  custom  is  particularly  and 
expressly  excluded.  Parol  evidence  of  custom  and  usage,  conse- 
quently, is  always  admissible  to  enable  us  to  arrive  at  the  real 
meaning  of  the  parties  who  are  naturally  presumed  to  have  con- 
tracted in  conformity  with  the  known  and  established  usage.  Thus, 
the  custom  of  the  country  in  regard  to  the  claims  of  an  outgoing 
tenant  of  a  farm  will  prevail,  although  there  is  a  lease  under  seal 
regulating  the  terms  of  the  holding,  but  not  containing  stii)ulations 
as  to  the  terms  of  quitting,  which  can  exclude  the  custom."^^  The 
customary  right  of  a  tenant  to  the  away-going  crop,  to  compensa- 
tion for  work  and  labor,  seed,  and  materials  employed  in  manur- 
ing, tilling,  and  sowing  the  land,  also  the  customary  right  of  a  land- 
lord or  reversioner  to  a  heriot  on  the  death  of  a  tenant  for  life,  and 
all  customs  and  usages  respecting  the  cultivation  of  the  soil  and 
the  mode  of  husbandry,  will  impliedly  prevail,  if  the  lease  is  silent 
respecting  them,  and  parol  or  oral  evidence  is,  consequently,  ad- 

'^In  Steffins  v.  Collins,  G  Bos.  (N.  the  plaintiflf,  S.,  with  whom  the  de- 
Y.  Supr.  Ct.)  223,  the  defendant,  C,  fendant  agreed  in  writinji  that  "the 
having  a  lease  of  a  store,  underlet  present  lessee  and  occupant  of  the 
to  A. "the  whole  of  the  first  floor  ex-  first  floor  of  the  house  may  continue 
cepting  a  portion  thereof  which  was  to  use  and  occupy  the  said  premises 
then  partitiond  off,  and  which  con-  as  long  as  I  hold  the  lease  thereof." 
sisted  of  the  stairway,  with  a  hatch-  In  an  action  brought  by  S.  to  re- 
way  in  front,  leading  to  the  upper  cover  damages  against  C.  for  putting 
stories  of  the  building.  There  were  up  the  partition,  it  was  held,  that 
two  doors  in  the  front,  the  one"  open-  parol  evidence,  showing  that  the 
ing  opposite  the  stairway  and  the  plaintiff  took  the  agreement  from  the 
other  into  the  lower  room,  into  defendant  with  the  knowledge  of 
which  there  was  also  access  through  what  were  the  rights  and  obligations 
a  door  in  the  partition.  The  under-  of  A.,  the  first  undertenant  m  the 
tenant,  A.,  with  the  consent  of  his  premises,  was  competent, 
lessor,  removed  the  partition,  agree-  "  Knapp  v.  Marlboro,  29  Vt.  282. 
ing  to  restore  it  when  requested  so  "  Hutton  v.  Warren,  1  M.  &  W. 
to  do.        Afterwards   A.    sold    out   to  475,  476;   Domat,  liv.  1  tit.  1. 


132  Evidence.  [Chap.  2. 

missible  to  superadd  tlie  usage  and  customary  right  to  the  contract 
between  the  parties,  such  right  and  usage  being  recognized  by  law 
as  incident  to  the  subject-matter  of  the  contract,  and  consequential 
upon  the  taking  of  the  lands.^'"  But  parol  evidence  of  custom  and 
usage  is  not  admitted  to  contradict  or  vary  express  stipulations  and 
provisions  restricting  or  enlarging  the  exercise  and  enjoyment  of 
the  customary  right.  Omissions  may  be  supplied  by  the  introduc- 
tion of  the  custom,  but  the  custom  cannot  prevail  over  and  nullify 
the  express  provisions  and  stipulations  of  the  contract.^^  If  a  lease, 
for  example,  contains  an  express  provision  as  to  the  disposal  of  the 
away-going  crop,  or  specifies  and  regulates  the  particular  allow- 
ances that  are  to  be  made  by  an  incoming  to  an  outgoing  tenant, 
tlie  custom  in  respect  thereof  is  excluded.^' 

An  ordinary  deed  in  fee  simple  may  be  impressed  with  a  trust 
by  parol  evidence,  but  where  the  hal)endum  clause  gives  the  grantee 
authority  to  dispose  of  the  granted  j)reniises  as  he  may  see  tit,  parol 
evidence  of  a  trust  is  inadmissible  as  contradicting  the  deed.'*  Al- 
though a  deed  by  a  mortg<igor  contains  full  covenants  against  in- 
cund)rances  oral  evidence  is  admissible  to  show  that  the  grantee 
assumed  the  mortgage  and  that  the  consideration  named  included 
the  mortgage.'^  A  parol  agreement  by  a  purchaser  of  real  estate 
restricting  its  use  in  a  certain  way  is  not  mergxid  in  the  deed  and 
does  not  qualify  or  in  any  way  affect  the  title  to  the  land  and  parol 
evidence  of  such  an  agreement  is  admissible.'*'^  Where  a  deed  pur- 
ported to  convey  real  estate  and  also  certain  personal  property  in- 
cluded in  a  prior  agreement  the  gi-antce  may  show  that  the  consid- 
eration named  in  the  deed  covered  also  other  personal  property  not 
mentioned  in  the  ])rior  agreement.  Such  evidence  was  held  not 
inconsistent  with  the  deed. 

Parol  evidence  is  admissible  to  show  that  a  mortgage  expressed 
to  be  for  a  definite  sum,  was  given  to  secure  future  advances.*^    Al- 

*' Wigglesworth      v.      Dallison,       1  *' Mee  v.  Mee.  113  Tenn.  453,  82  S. 

Doujr.  201:  Wilkins  v.  Wood,   17  Law  W.   830. 

J    Q    B.  319.  °°  Brosseau   v.   Lowry,  209   111.   405, 

"'"Clarke  \.  Rovstone,    13   ^\.  &   W.  70  N.   E.  R.  901. 

752-    14    Law    J.'  Exch.    143;   Tavlor  *"  Hall    v.    Solomon,   61    Conn.    476, 

on   Ev.   p.   771;      Blackett   v.   R.  "Ex.  23  A.  876,  29  Am.  St.  Rep.  218. 

Ass.  Co.,  2  C.  &  J.  249.  *'  Lathrop    v.     Humble,     120     Wis. 

"Roxburghe  v.  Robertson,  2  Bligh,  331.  97  X.  W.  905. 

156;   Webb  v.  Plummer,  2  B.  &  Aid.  *- Kirby  v.  Raynes,  138  Ala.  194,  35 

746;    Roberts   v.    Barker,    1    C.   &   M.  So.   118. 
808.- 


See.  41,]  Parol  Evidence  as  to  Writings.  133 

though  a  mortgage  is  returned  to  the  mortgagor  indorsed  "paid  in 
full,"  parol  evidence  may  be  received  to  show  that  it  had  not  been 
paid  and  that  the  indorsement  was  the  result  of  a  mistake.^^ 

Sec.  41.  Custom  or  Usage. 

A.  Parol  Evidence  of  Usage,  admissible  when. 

Parol  evidence  applying  an  instrument  to  the  subject<-matter, 
explaining  expressions  used  in  a  peculiar  sense  and  showing  the 
circumstances  existing  when  the  contract  was  made,  to  give  effect 
to  the  language  used  in  a  contract  by  the  parties,  as  they  under- 
stood it,  is  admissible  and  does  not  impugTi  the  general  rule  for  the 
reason  that  it  does  not  add  to  or  subtract  from  the  contract,  but 
rather  enables  the  court  to  effectuate  it  according  to  the  true  inten- 
tion of  the  parties.^  It  is  upon  this  ground  diat  evidence  of  a 
usage  or  custom  existing  in  a  particular  trade  or  business  or  in  a 
particular  locality  is  permitted  to  be  showm.^  It  is  now  well  settled 
that  a  general  usage  or  one  which  is  knoivn  to  the  parties  and  which 
does  not  conflict  with  the  express  terms  of  a  contract,  forms  a  part 
thereof  as  much  as  though  written  therein.^ 

The  maxim  "In<  contractibus  tacite  veniunt  ea  quae  sunt  nioris 
et  consuetudinis,"  has  full  application  in  such  cases.  "Experience 
and  observation,"  says  Stores^  J.,'*  "prove  that  the  engagements  of 
individuals  are  in  fact  entered  into  with  reference  to  the  customs 
and  usages  which  prevail  in  the  community  where  tlicy  are  made ; 
they  therefore  tacitly  agree  to  conform  to  them,  and  so  far  from 
doing  injustice  by  regarding  such  customs  and  usages,  it  is  the  only 
mode  hy  which  justice  can  he  attained.  The  presumption  is,  in- 
deed, that  those  who  enter  into  contracts,  intend  to  bo  governed  by 

"Rarden  v.  Cunningham,   136  Ala.  Maynard,    16   N.   H.    165;      Sewall  v. 

263,  34  So.  26.  Gibbs,   1   Hall    (N.  Y.),  612;      Samp- 

*  Boon  nan  v.  Jackson,  12  Wend.  son  v.  Gazzam,  6  Port.  (Ala.)  123; 
(N.  Y. )  573;  Robertson  v.  French,  4  Stultz  v.  Dickey,  5  Binn.  (Penn.) 
East,  135.  287;      Mann    v.  "^  Burch,    25    111.    35; 

*  The  Schooner  Reeside,  2  Sum.  (U.  Palmer  v.  Kane,  5  Wis.  265;  Lud- 
S.)  569;  Heald  v.  Cooper,  8  Me.  83;  wick  v.  Ohio  Ins.  Co.,  5  Ohio,  436; 
Wait  V.  Fairbanks.  Brayt.  (Vt.)  7;  Haven  v.  Wentvvorth,  2  N.  H.  93; 
William  v.  Gilman.  3  Me.  276.  Stevens   v.    Reeves,    9    Pick.     (Mass.) 

^Sipperley    v.     Steward.    50    Barb.  108;      Inglebright    v.    Hammond,    19 

(N.   Y. )    62:   Wheeler   v.   Newbold,  5  Ohio,   337;      Noble      v.      Konowav,    1 

Duer    (X.   Y. ),   29;   Bank   of    Colum-  Doug.  510;   Parr  v.  Anderson,  6  East, 

bia   V.    Fitzhugh,    1    H.   &    G.    (Md.)  202:      Halsev     v.      Brown,      3      Day 

239;      Duguid  v.   Edwards,   50   Barb.  (Conn.),   MQ. 

(N.  Y.)    288;     United  States  v.  Ar-  "In   Kilgore  v.    Bulkley,    14   Conn, 

rand,  6  Pet.   (U.  S.)  715;     Martin  v.  390. 


134  Evidence.  [Chap.  2. 

the  general  principles  of  law.  It  is,  however,  competent  for  them 
to  renounce  tlie^e  principles  when  public  policy  does  not  forbid, 
and  to  adopt  another  rule  of  action,  and  the  prevalence  of  a  par- 
ticular local  usage  on  the  subject,  variant  from  those  general  rules, 
in  the  absence  of  evidence  to  resist  it,  affords  a  rational  ground  of 
inference  that  iliey  intended  to  do  so."  Ihe  injustice  of  a  con- 
trary doctrine  may  be  illustrated  thus:  Suppose  the  statute  pro- 
vides, as  is  tJie  case  in  many  of  the  States,  that  a  "barrel"  shall 
consist  of  thirty-two  gallons,  but  by  the  uniform  usage  of  a  certain 
trade  a  l)arrel  consists  of  forty-four  gallons,  as  in  the  petroleum 
trade,  and  that  number  of  gallons  in  that  irad^i  has  uniforndy 
been  given  for  a  barrel,  have  not  parties  contracting  for  a  Jjarrel 
of  petroleum  a  right  to  understand  that  they  are  to  have  forty-four 
gallons,  precisely  the  same  as  though  it  had  been  written  out  in  the 
contract,  and  notwithstanding  the  statute  fixes  the  general  standard 
at  a  less  number  ?  The  courts  justly  answer  in  the  affirmative,"'  and 
the  same  principle  lies  at  the. foundation  of  all  the  cases  admitting 
this  species  of  evidence.  Its  object  and  purpose  is,  not  to  permit 
the  contract,  which  has  been  reduced  to  writing,  to  be  varied  in 
any  respect,  but  rather  to  ascertain  what  the  parties  intended  by 
tlieir  writing,  and  carry  their  intention  into  effect.  Where  a  con- 
tract is  entered  into,  the  parties  are  presumed  to  deal  with  refer- 
ence to  the  known  general  or  uniform  custom  or  usage  governing 
the  business  or  subject-matter  to  which  the  contract  relates,  unless 
they  exclude  such  presumption  by  the  terms  of  the  agreement  it- 
self;  but,  to  have  commercial  usage  take  the  place  of  general  law,  it 
musthavebeensouniformly  acquiesced  in  for  such  a  length  of  time 
that  the  jur^^  will  feel  themselves  constrained  to  find  that  it  entered 
into  the  minds  of  the  parties  and  formed  a  part  of  the  contract.® 

'Miller  v.   Stevens,   100  Mass.   518.  "  Oldeshaw    v.    Knoles.    4    111.   Apn 

See    Evans    v.    Mvers,    25    Penn.    St.  63;   Wheeler  v.  Newbald.  5  Duer    (N 

114;   Green    v.    ]\iofTat,    22    Mo.    529,  Y. ) ,      20;      Juggomohim      Ghore      v 

where  it  was  held  that  a  usage  to  re-  Muniekehund,     7     Moore     Ind.     App 

gard   2.200   pounds   as   a   ton   instead  263;     Wilcox  v.  Phillips,  1  Wall.,  Jr 

of  2.000  pounds,  as  fixed  by  statute,  (U.   S.  C.  C. )    47;      Leigh  v.  Hewitt 

is  not  admissible.     But  an   examina-  4  East,  154;    Dalby  v.  Hirst,  1   B.  & 

tion  of  those  cases  will  show  that  the  B.   224;      Grissell   v.   Bristowe,   L.   R 

real    ground    for    rejecting    such    evi-  46,  P.  36;     Greanes  v.  Legg,  2  H.  & 

denee  was  that  it  did  not  establish  a  N.   210;      Duncan    v.   Hell,    L.    R.,    6 

usage    which    would    warrant   a    pre-  Exch.    25;      Bayliffe   v.    Buttervvorth 

sumption  that  the  parties  contracted  1    Exch.    429;      Hodkinson    v.   Kelly 

in  reference  to  it.  L    R.,  6  Exch.  2o ;   Taylor  v.  Stray 


Sec.  41.]  Parol  Evidence  as  to  Writings.  135 

The  contract  expresses  what  is  particular  to   the   bargain,   and 
the  usage  supplies  the  rest.^ 

B.  Qualities  and  Proof  of  binding  Usage. 

It  follows,  therefore,  that,  in  order  to  amount  to  a  binding  usage 
of  a  trade  or  business,  so  to  speak,  it  must  be  shomi  to  be  so  well 
established,  so  general,  so  uniform  and  notorious  that  it  may  rea- 
sonably be  presumed  that  the  parties  knew  of  and  contracted  in 
reference  to  it.  Mercantile  usage  must  be  proved  hy  the  multipli- 
cation or  aggregation  of  a  great  number  of  instances  showing  a  cer- 
tain course  of  business,  and  a  general,  established  understanding 
respecting  it.^  And  it  must  be  shown  that  it  is  established  and  not 
merely  casual,  uniform  and  not  varying,  general  and  not  personal, 
€r  that  it  was  known  to  the  parties  iwhen  the  contract  was  entered 
into.^  Where  a  custom  is  show^l  to  prevail  generally  and  not  to  be 
purely  local  in  nature  and  is  so  well  settled  and  notorious  as  to 
raise  a  presumption  that  it  was  known  to  a  buyer  and  seller  this 
presumption  is  not  rebutted  by  testimony  of  one  of  the  parties  that 
he  was  not  aware  of  such  custom.^"  In  a  suit  on  an  insurance 
policy  it  is  not  competent  for  the  plaintiff  to  show  a  custom  and 
usage  of  other  companies  doing  business  in  the  vicinity  to  waive 
proofs  of  loss  as  provided  in  the  policy  although  evidence  would 
I)e  admissible  to  show  a  usage  of  the  defendant  compa-ny  to  waive 
such  proof.^^    If  such  usage  is  not  proved,  it  should  be  laid  out  of 

^  C.  B.,  N.  S.  175:  Bavlv  v.  Wilkins,  v.    Hicock,    2    Wend.     (N.    Y.)     501; 

7  C.  B.'SSO;     Buckle  v.  Knapp.  36  L.  Kendall    v.    Russell.    5    Dana    (Ky.), 

J    Exch    49;      Pollock  v.   Staples,   12  501;      Stevens     v.     Reeves,     9     Pick. 

Q    B.  705.  (Mass.)      198;      Watt    v.     Hock,     25 

'Myer  V.   Dresser.   16   C.   B..  N.   S.  Penn.    St.    411;   Hursh    v.    North,    40 

G46;  balton   v.   Daniels,   2   Hilt.    (N.  id.  241;   Sampson  v.  Gazzani,  6  Port. 

Y.  C.  P.)    403.  (Ala.)    123;    Haven   v.    Wentworth,   2 

^Foye   V.   Leif'hton.   22   X.   H.    71;  N.  H.  93;   Gallup  v.   Lederer.   1   Hun 

Knowles  v.  Dow,  22  id.  387:   Burr  v.  (N.    Y.),    282:   Mills    v.    Hallock,    2 

Sickles,     17     Ark.     428:      Walker    v.  Edw.  Ch.    (X.  Y.)    652.  • 

Barrow,     6     Minn.     508;      Saint     v.  '"Austrian   &   Co.    v.    Springer,    94 

Smith,   1   Coldw.    (Tenn.)    51:   Chesa-  Mich.   343,  54  N.  W.  50,  34  Am.  St. 

peake   Bank   v.    S\vain.   29   Md.   483;  Rep.  350. 

Smith    V.    Floyd,    18    Barb.     (X.    Y.)  "  Phenix  Insurance  Co.  v.  Munger, 

392;   :Maokcnzie   v.    Dunlop.    3    Macq.  49   Kan.    178,   33   Am.    St.   Rep.   360, 

(Sc.)    H.  L.  Cas.  22.  30  P.  120. 

"Wheeler  v.  Xewbould.  5  Duer   {Is.  Where  a  custom  or   usage  was   set 

Y. ),    29:      Sipperley   v.    Steward.    50  up  that  a  class  of  mercantile  houses 

Barb.    (X.  Y.)    62;      Martin  v.   May-  hi    the    same    line    of    trade    in    New 

Tiard,   16  X.  H.   165;     Duguid  v.  Ed-  York,      generally      known      as      "six 

wards,  50  Barb.   (N.  Y.)    288;   Wood  months'    houses,"    by    their    general 


136  Evidence.  [Chap.  2. 

the  case ;  and  an  offer  of  evidence  of  anything  less  should  Ix?  cx- 
cliided.^'  But  in  order  to  establish  it  neither  antiquity  nor  that 
general  notoriety  essential  to  establish  a  custom  need  be  sho\\Ti.  It 
is  sufficient  if  it  is  shown  to  be  so  well  known  and  acquiesced  in 
that  it  may  be  reasonably  presumed  to  have  been  an  ingredient  im- 
ported into  the  contract  by  the  parties."  And  this  is  tlie  case  only 
when  the  usage  is  certain,  reasonable  and  universally  acquiesced 
in,  so  that  every  one  engaged  in  the  trade  knows,  or  might  have 
known  of  it,  if  he  had  taken  the  trouble  to  inquire."  If  it  is  sought 
to  establisli  a  usage  of  a  trade  to  control  the  meaning  of  words,  it 
must  be  sho^\'*n  that  the  words  are  used  in  that  trade  and  are  under- 
stood in  a  defined  sense,  and  a  mere  habit  of  affixing  a  s|)ecial  mean- 
ing to  words  when  used  in  one  chiss  of  contracts  does  not  amount 
to  such  a  usage  as  will  justify  the  presumption  that  they  were  used 
in  that  sense  in  the  contract  in  (piestion.  The  proofs  must  go  fur- 
ther, and  show  facts  that  lead  to  a  conviction  that  tliey  were  used  in 
that  case  in  such  sense.^" 

As  previously  stated,  the  usage  must  be  proved  by  the  multipli- 
cation or  aggregation  of  a  great  number  of  particular  instances; 
hut  these  instanees  must  not  he  miscellaneous  in  character,  hut 
must  have  a  principle  of  unity  runninfj  through  their  variety,  and 
that  unity  must  show  a  certain  course  of  husiness,  and  an  estah- 
iished  understanding  respecting  it.  A  usage  of  trade  is  a  matter 
of  fact,  and  must  be  proved  like  any  other  fact,  and  cannot  be  es- 
tablished by  the  mere  opinion  of  witnesses.  It  may  be  proved  by 
witnesses  testifying  to  its  existence  and  uniformity  from  their 
knowledge  of  it  obtained  by  observation  of  what  is  practiced  by 

and  xiniform  course  of  business,  on  "  Linsley  v.  Lovely,  26  Vt.  123. 
a  bill  of  poods  containing  a  nicmoran-  '^  Shacklcford  v.  New  Orleans  R» 
duni,  "six  per  cent,  off  for  cash,"  R.  Co.,  37  Miss.  202;  Harper  v. 
would  understand  a  sale  on  six  Pound,  10  Ind.  32;  Buck  v.  Grim- 
months'  credit,  without  any  express  shaw.  1  Edw.  Ch.  (X.  Y. )  147-  Chas- 
agreement,  it  was  held  that  in  order  tain  v.  Bowman,  1  Hill  (S.  C. ),  276; 
to  discharge  the  office  of  exposition,  Coliings  v.  Hope,  3  Wash.  (Va.) 
and  be  admissible  in  evidence,  it  150;  Juggomohun  Ghore  v.  Manick- 
must  be  found  to  be  the  general  chund,  7  Moore  Ind.  App.  263; 
usage  of  the  whole  of  that  c'ass  of  Smith  v.  Gibbs,  44  N.  H.  33.5;  Rapp 
houses  in  the  city  of  New  York,  and  v.  Palmer,  3  Watts  (Penn.),  178; 
so  well  established  and  uniformly  ac-  Lewis  v.  Thatcher,  15  Mass.  433. 
quiesced  in,  and  for  such  a  length  of  "  Plain  v.  Allcock,  4  F.  &  F.  1074- 
time,  that  the  jury  might  fairly  in-  "Abbott  v.  Bates.  43  L.  J.  C.  P. 
fer  that  it  was  known  to  the  con-  150;  Eaton  v.  Smith,  20  Pick. 
tract ing  parties,  and  made  by  impli-  (Mass.)  150;  Steward  v.  Scudder, 
cation  a  part  of  their  contract.  29  N.  Y.  L.  96. 


Sec.  41.] 


Parol  Evidence  as  to  Writings. 


137 


themselves  and  others  in  the  trade  to  which  it  relates,  but  the  opin- 
ions of  witnesses,  or  their  conclusions  or  references  as  to  its  effect, 
either  upon  the  contract  or  the  legal  title  or  rights  of  parties,  are 
not  competent  to  show  the  force  of  such  usage  or  its  character.^' 
As  a  general  rule,  one  witness  is  not  sufficient  to  establish  a  general 
usageV'  but  the  question  as  to  whether  the  evidence  of  one  witness 
is  sufficient  or  not,  must  be  determined  from  the  witness's  means 
of  information  and  acquaintance  with  the  business.''  While,  as  pre- 
viously stated,  usage  cannot  be  established  by  the  mere  opinions  of 
witnesses,  yet,  if  the  witness  has  derived  all  his  knowledge  of  the 
usage  from^is  own  business,  and  it  is  shownto  be  sufficiently  exten- 
sive and  long  continued  to  warrant  the  presumption  that  his  knowl- 
edge in  that  respect  is  general,  he  may  state  his  belief  as  to  what 
such  custom  or  usage  is.'^ 

"The  testimony  of  a  single  wit- 
ness is  not  generally  sufficient  to  es- 
tablish a  usage  of  trade  of  which  all 

are   bound   to   take   notice.     Wood   v. 

Hicock,  2  Wend.    (N.  Y.)    501.     But 

if   the   witness    discloses   such    famil- 
iarity  with    the   trade    as   to   satisfy 

the   jury,   the  evidence  may   be   suffi- 
cient    .tones  V.  Hoev,  128  Mass.  585; 

Penlaml  v.  Ingle   (X.  C  1905).  50  S. 

E     850:   Robinson   v.    United    States, 

13    Wall.    (U.   S.)    306;   Partridge  v. 

Forsyth,   29  Ala.   200;   Vail   v.    Kice, 

5  XY.  155.     Nor  is  the  custom  of  a 

particular    house    of    itself    sufficient 

proof  of  a  general  usage.       Weber  v. 

Kingsland,  8   Bos.    (N.  Y.)    415.     In 

Smith    V.    Flovd,    18    Barb.    (N.    Y.) 

523,  it  was  he'ld  that  the  evidence  to 

establish    a    customary    right    should 

not  be  less  than  that  required  to  es- 

tablisli     a      prescriptive     right.       In 

Jewell  V.  Carter.  25  Ala.  498.  it  was 

held   that   where   there   is   conflicting 

evidence,  the  question   as  to  whether 

or  not  a  usage  is  established  should 

be  left  to  the  jury,  and  that  where 
there    is    the    evidence    of    only    one 

witness  thereto,  the  court  should 
tell  the  jury  that  there  is  no  evi- 
dence of  a  usage  before  them.  bee 
also  Boardman  v.  Spooner,  13  Allen 
(Mass.).  359.  But  this  is  not .  the 
rule  now  cenerally  recognized,  and 
if  a  witness  testifies  fully  and  ex- 
plicitly to  the  existence  of  a  usage, 
and     his    testimony    is    not    contra- 


dicted, it  cannot  be  assumed  as_  a 
legal  conclusion  that  the  proof  is  in- 
sufficient. Martin  v.  Mobile  Bank, 
10  Ala.  284;  Robinson  v.  United 
States,  13  Wall.  (U.  S.)  366;  Has- 
dins  V.  Warren,  115  Mass.  514; 
Garev  v.  Meaghar,  33  Ala.  630; 
C  hesapeake  Bank  v.  Swain,  29  Md. 
483. 

"Halverson  v.  Cole,  1  Spears  (S. 
C.)  321;  Thomas  v.  Graves,  1  Mill 
(S.  C.)  Const.  309;  Bissell  v.  Ryan, 
23  111.  566;  Wood  v.  Hickok,  2 
Wend.  (N.  Y.)  501;  Halls  v.  Howell, 
Harp.   (S.  C.)   427. 

"  Hamilton  v.  Nickerson,  13  Allen 
(Mass.),  351;  Vail  v.  Rice,  5  N.  Y. 
155;  Partridge  v.  Forsyth,  29  Ala. 
'^00-  Robinson  v.  United  States,  13 
Wall.    (U.  S.)   365. 

'"Hamilton  v.  Nickerson,  13  Allen 
(Mass.),  351. 

Proof  that  in  one  instance  the  use 
by  a  son  of  his  father's  name,  upon 
negotiable  paper  discounted  at  a 
bank,  was  known  and  acquiesced  in 
bv  the  father,  does  not  authorize  the 
introduction  in  evidence  of  subse- 
quent similar  acts,  for  the  purpose 
of  showing  an  implied  authority  in 
the  son  to  sign  his  father's  name, 
without  proof  that  these  also  were 
known  and  acquiesced  in  by  him. 
Greenfield  Bank  v.  Crafts,  2  Allen 
(Mass.),  269.  Evidence  of  a  custom 
of  manufacturers  of  iron  castings  to 
warrant    the   quality   of   the   articles 


138 


Evidence. 


[Chap.  2. 


A  usage  governing  a  question  of  legal  right  cannot  be  proved  by 
isolated  instances,  but  should  be  so  certain,  uniform  and  notorious 
that  it  niiLst  probably  have  been  understood  by  the  parties  as  en- 
tering into  the  contract.^" 

An  isolated  instance  is  not  sufficient  to  prove  a  custom,  nor  will 
evidence  of  the  custom  of  one  person  be  sutticient  to  establish  a  gen- 


niadp  by  tliem,  without  an  expre-ss 
contract  to  that  enVit,  is  adniis>sible 
ir.  an  action  founded  on  such  sup- 
posed warranty.  Evidence  that  such 
was  the  custom  at  three  different  es- 
tablishments, without  proof  that  a 
contrary  usage  obtained  at  others  in 
the  vicinity,  is  sulHcient  to  author- 
ize tlie  jury  to  find  such  to  be  tiie 
general  custom.  Sumner  v.  Tyson, 
20  N.  H.  384.  To  prove  a  custom  for 
all  the  inhabitants  of  Hampton  to 
deposit  sea-weed  upon  tlie  close  of  the 
plaintiffs,  the  defendant  offered  evi- 
dence that  thirty  of  the  inhabitants 
had  done  so  for  many  years.  It  was 
lield  that  this  was  competent  evi- 
dence to  be  submitted  to  the  jury  to 
prove  the  custom.  So,  where  a  plea 
alleged  a  custom  in  the  inhabitants 
of  Hampton  to  haul  sea-weed  upon 
the  plaintiff's  close,  tlie  evidence  was 
that  only  those  inhabitants  of  Hamp- 
ton exercised  the  right  who  lived  at 
a  convenient  distance  from  tlie  sea- 
shore, it  was  held  that  this  was 
competent  evidence  of  the  custom. 
Knowlcs  v.  Dow.  22  X.  H.  71. 

'"Cope  V.  Dodd,  13  Penn.  St.  33; 
The  Paragon,  1  Ware  ( U.  S.),  322; 
Desha  v.  Holland,   12  Ala.  513. 

Where  the  fact  is  material  that  a 
purchaser  of  land  has  actual  knowl- 
edge of  a  right  of  way  over  the  same, 
evidence  that  the  way  was  used  for 
many  years,  and  that  the  purchaser 
lived  all  the  time  in  the  same  imme- 
diate neighborhood,  is  properly  sub- 
mitted to  the  jury.  Wissler  v. 
Hershey,  23  Penn.  St.  333.  The  fact 
that  it  is  shown  that  a  certain 
method  of  doing  business  is  "  very 
common,"  does  not  establish  a  usage. 
Ansil  V.  Crawford,  7  Ala.  335.  To 
establish  a  shipping  usage  on  a  cer- 
tain river,  the  witness  may  state  his 
habit  and  custom  in  shipping  on  all 
boats  on  the  river.  Berry  v.  Cooper, 
28   Ga.   543.     Proof   of  the  usage   of 


the  clerks  of  steamboats  to  receive 
and  carry  packages  from  one  port  to 
anotlier.  without  hire,  in  the  expec- 
tation that  such  boat  would  be  pre- 
ferred by  the  parties  in  tlieir  ship- 
ments of  freight,  is  insuflicient  to 
bind  the  owners;  first,  because  no 
certain  or  fixed  standard  of  remu- 
neration is  shown,  nor  that  the  con- 
signee of  the  package  would  be  liable 
to  make  any  return  for  tlie  risk  and 
lalx)r  incurred:  and.  second,  because 
it  is  not  shown  that  such  u^age  had 
grown  up  with  the  consent  of  the 
owners  of  vessels,  or  that  it  was  more 
than  a  mere  accomnuKlation  usage. 
Cincinnati.  &c.,  Co.  v.  Boal.  15  Ind. 
345.  Wiiere  the  plaintiff  relied  upon 
a  parol  acceptance  of  a  bill  of  ex- 
change, evidence  of  a  custom  of  the 
defendants  to  accept  always  in  writ- 
ing and  make  corresponding  entries 
on  their  books,  was  held  comi>etent  as 
tending  to  show  in  this  rase  that  the 
bill  had  not  been  accepted.  Smith  v. 
Clark,  12  la.  32.  Where  there  is 
proof  of  an  agreed  price  or  compen- 
sation, or  of  a  usage  which  might  af- 
fect it,  or  from  which  an  agreement 
might  be  inferred,  it  would  not  be 
correct  to  authorize  them  to  judge 
of  the  reasonableness  of  the  charges, 
irrespective  of  such  agreement  or 
usage:  but  the  court  should  deter- 
mine whether,  if  proved  to  the  sat- 
isfaction of  the  jury,  the  usage  is 
reasonable  or  operative.  Codman  v. 
Armstrong.  28  Me.  91.  The  mere 
opinions  of  witnesses  are  not  evidence 
of  a  usage.  Garey  v.  Meagher,  33 
Ala.  G30.  That  a  railroad  company 
had  been  for  about  a  month  in  the 
habit  of  storing  cotton  consigned  to 
their  agent,  at  the  warehouse  of  A., 
witliout  any  proof  that  this  was  gen- 
erally known,  or  any  other  evidence 
that  the  shipper  had  notice  of  it,  is 
not  sufTicient  to  bind  him.  Alabama, 
&c.,  R.  R.  Co.  V.  Kidd,  35  Ala.  209. 


Sec.  41.] 


Parol  Evidence  aS  to  Writings. 


139 


€ral  course  of  trade."^  When  a  special  custom  at  the  phice  of  ship- 
ment is  proved,  and  the  question  is  whether  the  purchaser  had 
knowledge  of  the  special  custom,  and  contracted  in  reference  to  it, 
the  previous  course  of  dealing  between  the  same  parties— such  as 
the  order,  shipment  and  receipt  of  several  invoices  of  goods,  with- 
out any  charge  for  insurance— is  sufficient  evidence  from  which 
the  jury  may  infer  knowledge  of  the  special  custom.''  A  general 
usage  in  any  place,  by  which  sales  on  commission  are  regulated, 
may  be  given  in  evidence,  for  it  is  a  reasonable  and  legal  presump- 
tion that  everv  man  knows  the  usage  of  the  place  in  which  he 
traffics,  whether  by  himself  or  his  factor,  and,  if  the  usage  is  not 
illegal,  he  is  bound  by  it.''  A  usage  may  be  proved  by  paroV 
whether  it  originates  in  a  public  written  law,  or  not."'' 


"Burr  V.   Sickles,   17   Ark.  428. 
« Walsh   V.   Frank,    19  Ark.   270. 
Evidence   that    "  there    has    always 
been  a  custom  at  a  certain  saw-mill 
and  other  mills  in   the  neighborhood 
to  leave  the  slabs  as  belonging  to  the 
mill,    the   owners    of    the    logs    never 
■claiming  them,"  does  not  establish  a 
legal  riglit  in  the  mill  as  real  estate 
io  the  slabs  sawed.     Adams  v.  IMorse, 
51   INIe.   49(5.     Proof   is   admissible   of 
a    custom    among    merchants,    where 
merchandise  is  sold  on   condition,  to 
deliver   it   to   the   buyer   before   com- 
pliance with   the  condition,   and  that 
such    change    of    custody    is    not    de 
facto  a  waiver  of  the  condition,  and 
the   propertv   docs   not   pass   thereby. 
Farlow    V.    Ellis.    1.5    Gray    (Mass.), 
229.     When,  in  a  suit*  against  a  rail- 
load  company  for  an  injury  received 
vhile    passing   along   a   highway,    an 
issue  is  made  upon  the  unrea.sonable 
or  negligent  conduct  of  the  company 
in  the  use  of  the  highway  at  the  time 
complained    of,    its    usage    at    other 
times  has  no  legitimate  bearing  upon 
this    issue,    and    evidence    respecting 
such  usage  is  incompetent.     Gahagnn 
A.    Boston,    &c.,    R.    R.    Co.,    1    Allen 
(Mass.),    187.      No  exception   lies   to 
the   admission   of  evidence  of   a  cus- 
tom  existing   in   a   trade  without   di- 
rect evidence   that  it  was   known   to 
the  opposite  party,  if  the  party  offer- 
ing  it   contends   that   he    can    prove, 
from    all    the    evidence    in    the    case, 
that    it    must    have    been    known    to 
him,    and    that    question    is    argued 


and  submitted  to  the  jury  under 
proper  instructions  in  matter  of  law. 
Dodge  V.  Favor,  15  Gray  (Mass.),  82. 
In  determining  whether  a  salary  or 
compensation  paid  to  a  director  of  a 
bridge  corporation  was  a  reasonable 
expense  of  the  corporation,  evidence 
is  inadmissible  of  a  custom  in  sundry 
other  corporations  to  pay  directors 
no  salaries  as  compensation  for  ser- 
vices. Central  Corp.  v.  Lowell,  15 
Grav    (Mass.),   100. 

"Dwight  V.  Wliitney,  15  Pick. 
(Mass.)  179;  Goodenow  v.  Tyler,  7 
Mass.  .30,  40. 

Goods  being  consigned  to  an  agent 
for  sale,  with  general  instructions  to 
remit  the  proceeds,  it  is  a  sullicieiit 
compliance  witii  such  instructions  if 
the  agent  remits  by  a  bill  of  ex- 
change, without  indorsing  or  guar- 
anteeing it,  provided  such  is  the 
usage  at  the  agent's  place  of  busi- 
ness, and  the  agent  uses  proper  dili- 
gence and  discretion  in  the  purchase 
of  the  bill.  In  an  action  against  the 
agent,  to  recover  the  proceeds  of  such 
a  sale,  proof  of  the  usage  and  of  a 
remittance  accordingly  is  a  sufficient 
jirima  facie  defense,  and  if  it  is  es- 
tablished by  the  agent,  the  burden  of 
proof  is  then  on  the  principal  to 
show  that  bills  remitted  in  pursu- 
ance of  the  usage  ought  to  be  in- 
dorsed or  guaranteed  by  the  agent. 
Potter  v.  Morland,  3  Cush.  (Mass.) 
384. 

-*  Drake    v.     Hudson,    7     H.    &    J. 
( Md. )    399 ;     see,  also,  Livingston  v. 


140  EviDEuNCE.  [Chap.  2. 

C.  Need  not  necessarily  be  General. 

It  is  not  necessary  that  a  iij^age  should  be  general,  that  is,  extend 
over  the  whole  coimtry,  as  a  mere  })rivate  us'age,  that  is,  a  usage  of 
a  j)articular  business  house  or  individual  in  a  certain  department 
of  business,  may  be  binding,  if  it  is  sJiuivn  that  the  parties  ktww  of 
it  at  the  time  when  the  contract  was  entered  into,^  or  knowledge 
of  it  in  some  way  is  brought  home  to  them,  so  as  to  raise  a  pre- 
sumption that  they  contracted  in  reference  to  it,  A  trade  custom 
is  admissible  in  evidence  to  explain  the  meaning  of  a  contract  con- 
cerning that  trade,  and  need  not  be  coextensive  with  the  state. 
Even  the  usage  of  a  particular  tirm  may  govern  a  contract  if  known 
to  the  others  contracting.^"  Where  a  fire  insurance  policy  provides 
insurance  on  "such  other  merchandise  as  is  usually  kept  for  sale  in 
a  retail  hardware  store''  it  is  not  necessary  to  show  a  custom  to  keep 
dynamite  in  such  a  store  throughout  the  state.  It  is  suliicient  that 
it  is  generally  recognized  and  observed  by  those  engaged  in  the 
kind  of  transactions  to  which  it  ajiplies  within  the  region  where 
it  is  claimed  to  exist,  and  it  is  not  essential  that  it  be  observed 
in  every  individual  transaction."^  Neither  is  its  antiquity 
of  any  importance  exce]>t  as  in  aid  of  the  nuiin  point,  which 
is,  to  show  that  the  parties  knew  of  the  usage  and  intended  to  adopt 

Maryland  Ins.  Co.,  7  Cranch.   ( L'.  S. )  ence  to  a   demand   of   payment,   etc., 

506.  nii;.'lit    be    shown,    although    not    ac- 

In  an  action  for  damage?  for  the  cording  to  the  rules  of  the  common 
want  of  correspondence  between  to-  law.  Renner  v.  Bank  of  Columbia,  9 
bacco  bought  by  f^imple  and  the  Wheat.  ( L".  S. )  .581;  Hank  of  Co- 
samples  by  which  it  was  sold,  evi-  lumbia  v.  Magrudt-r.  (i  H.  &  J.  (Md.) 
dence  showing  a  custom  of  dealers  in  17i:  Kenn«'tM'ck  IJank  v.  Page,  9 
Baltimore  of  buying  and  selling  in  Mass.  155;  Loring  v.  Gurney.  5  Pick, 
bulk,  by  samples  prepared  bj*  the  (Mass.)  1(>:  Leavitt  v.  .Simes,  .3  N. 
State  inspectors,  without  insuring  H.  14;  Weed  v.  Gorham,  10  Mass. 
correspondence  in  quality,  is  admis-  3G6 ;  Bank  of  Utica  v.  Smith,  18 
sible.  Gunther  v.  Atwell,  10  Md.  John.  (X.  Y.)  2.30;  Emanuel  v, 
157.                                                            ^  Robarts,  9  B.  &  S.   121. 

-'Wood  V.  Hicock,  2  Wend.  (N.  Y. )  But  a  custom  of  insurance  men  in 

501  ;  Gahay  v.  Lloyd,  3  B.  &  C.  793.  one  city  of  tiie  State  is  not  adraissi- 

=*  Rostetter   v.    Reynolds.    160    Ind.  ble    to    explain    the    meaning   of   the 

133,   66   N.   E.   R.   612.        Custom   to  term     "net     receipts"     in     a     State 

measure    lumber    at    time    of    sawing  statute  as  the  custom  was  confined  to 

and  not  allow  for  subsequent  shrink-  one   city   and   the   statute   applies    to 

age.  the  entire  State,  and  its  construction 

"  Traders'    Ins.    Co.    v.    Dobbins    &  is   a   question   of   law   for   the   court. 

Ewing    (Tenn..   1905),  86  S.   W.   383.  National    Fire    Ins.     Co.    v.    Hanberg 

Under   this   rule   it   has    been    held  (111.,  1905 J,  74  N.  E.  377. 
that   the   custom   of  baiiks   in   refer- 


Sec.  41.]  Parol  Evidence  as  to  Writings.  141 

it  as  the  law  of  their  contract."^  With  reference  to  the  evidence 
necessary  to  support  an  alleged  usage,  it  may  be  said  that  it  is  not 
necessary  to  show  either  the  antiquity,  the  uniformity,  or  the  no- 
toriety of  custom,  which  in  respect  of  all  these  becomes  a  local  law. 
A  usage  to  be  good  and  to  be  one  of  which  the  court  will  take 
judicial  notice  must  be  general  and  of  such  long  standing  as  to 
have  become  a  part  of  the  law  itself;  so  in  Arkansas,  in  1896,  it 
was  held  that  a  usage  as  to  tlie  authority  of  officers  of  street  rail- 
way corporations  could  not  be  binding  as  ele(^ic  street  railways  in 
the  state  were  of  comparatively  recent  date  and  did  not  exist  to 
any  general  extent  throughout  the  state. ^^ 

A  custom  may  be  valid  although  confined  to  a  certain  district. 
Thus  a  universal  custom  to  recognize  the  rights  of  a  prior  appro- 
priator  of  water  for  mining  and  other  beneficial  uses  in  a  certain 
district  may  be  judicially  recognized  by  the  courts.^*^  On  the  issue 
of  the  reasonable  use  of  water  evidence  of  the  custom  or  habit  of 
other  users  upon  the  same  stream  is  admissible.  ^^ 

Where  it  is  attempted  to  engraft  on  a  contract  some  usage  of  a 
particular  trade  or  local  custom,  the  opposite  party  is  at  liberty  to 
disprove  the  usage  or  custom  by  the  like  evidence,  and  for  that 
purpose  to  show  other  previous  transactions  in  like  cases  between 
the  same  parties  wherein  the  supposed  usage  or  custom  was  not 
acted  on.^^ 

If  the  usage  exists,  and  it  is  not  inconsistent  with  the  written 
contract,  it  is  precisely  the  same  as  if  it  were  written  in  words  at- 
tached to  the  contract,  and  it  cannot  be  got  rid  of  by  proof  of  an 
oral  agreement  to  waive  or  vary  it.^^ 

The  words  ^^iisage  of  trade"  are  to  be  understood  as  referring 
to  a  particular  usage  to  be  established  by  evidence,  and  perfectly 
distinct  from  the  general  custom  of  merchants,  which  is  the  uni- 
versal established  law  of  the  land,  which  is  to  be  collected  from 

"Kendall     v.      Russell,      5      Dana  80   Pac.    571,    where  such    a    custom 

(Ky. ).  503;    Thompson  v.   Hamilton,  was  held  invalid  as  unreasonable. 

12  Pick.    (Mass.)    425.  "Hazard    Powder    Co.    v.    Somers- 

'•City,  etc.,   Rv.   Co.    v.    First  Na-  ville  Mfg.  Co.    (Conn.,   1905),   61   A. 

lional    Exchange' Bank.    62    Ark.    33,  519. 

34  S.  W.  89,  54  Am.  St.  Rep.  282.  '^  Bourne  v.  Gatliffe,  3  M.  &  G.  643. 

^"Isaacs   V.   Barber,    10   Wash.    124  "  Fawkes  v.  Lamb,  31  L.  -J.,  Q.   B. 

38  P..  871.  45  Am.  St.  Rep.  772.    But  98.     See,  also.   Burgess  v.   Wickham, 

see  Clark  v.  Allaman    (Kan.,    1905),  3  B.  &  S.  669;  Clapham  v.  Langton, 

6  B.  &  S.  729. 


142  Evidence.  [Hiap,  2. 

decisions,  legal  principles  and  analogies,  not  from  evidence  in  pais, 
and  the  knowledge  of  Avliich  resides  in  the  breast  of  the  judge.'* 
In  these  cases  evidence  of  a  general  custom  was  not  admitted  to 
contradict  the  law  merchant.^  On  the  question  of  the  authority 
of  the  defendant  to  make  a  contract  giving  to  a  jobber  the  exclu- 
sive right  to  sell  in  a  certain  district  evidence  of  a  custom  among 
such  agents  to  make  such  contract  is  admissible.'^  Evidence  is  ad- 
missible of  tlie  general  custom  or  usage  to  the  effect  that  persons 
authorized  by  mutual  fire  insurance  compauies  in  ^lassachusetts 
to  solicit  insurance  can  bind  the  company  until  notice  of  the  re- 
fusal of  the  risk  by  the  company  is  communicated  to  the  person 
desiring  the  insurance.  Tliis  custom  is  binding  even  though  the 
defendant  has  })rivate  instructions  limiting  hi?  power.''  "Where  a 
course  of  dealing  by  officers  and  agents  of  a  corporation  at  variance 
with  the  strict  limitation  of  duty  had  been  established  by  usage 
that  had  been  allowed  to  accumulate  in  the  transaction  of  its  bus- 
iness and  the  acquiescence  of  its  managers  charged  with  the  duty 
and  control  of  the  company's  business  the  cftmpany  may  be  bound 
thereby.  But  isolated  incidents  are  insuthcient  to  prove  the  cus- 
tom and  cannot  b.e  shown  to  overcome  or  change  the  express  pro- 
visions of  a  contract.'^ 

'*  1    Smith.    L.    Cases,    7th    ed.,    p.  •*  Koolier    v.    Supreme    Council,    65 

610;   Suse   v.   Pompe.   8   C.   B..   N.   S.  X.  J.  L.  649,  48  A.  544,  86  Am.   St. 

538;   30  L.   J..   C.   P.   75;      Meyer  v.  Rep.  687. 
Dresser,  16  C.  B..  X.  i'^.  646.  As  where  a  policy  of  insurance  was 

"In  Kidston  v.  Empire  Marine  In-  "on    the   ship  till   moored   at  anchor 

«!urance   Co.,  L.  R.,   1   C.   P.   535;    h.  24  hours,  and   on   the  poods   till   dis- 

R.,  2   C.    P.   357.  in   an  action  on  a  charged  and   saf»'ly  hmded,"  evidence 

policy    of    marine    insurance,    it   was  >l  a  u^ape  that  the  risk  on  the  poo'^ 

held   that   evidence   that  expenses  in-  as    well    as   the    ship,    expired    in    24 

curred  in  preserving  the  subject-mat-  hours,  was  held  inadmissible  to  qual- 

ter  of   insurance  were   not   "  particu-  ify    the    unequivocal     words    of    the 

lar    average.''    but    were    "  particular  policy.       Parkinson    v.    Collier,    Park 

charges,"  as  those  terms  were  under-  Ins.,  6th  ed.  416.     So  a  contract  for 

stood   in   the   business   of   marine    in-  payment    in     money     cannot    be    ex- 

surance.  was  admissible  to   show   the  plained   to   mean   payment  in  goods; 

mode    in    which    such    expenses   were  but  it  may  be  shown  that  goods  were 

treated  by  mercantile  men;   but  that  in   fact  accepted  as   cash  in   the  par- 

ihe    usage    proved   by    it    was    in    af-  ticular  transaction.        Smith   v.    Bat- 

firmance  of  the  common  law,  and  did  tams,  26  L.  J.,  Ex.  232.       So  where 

not  control  or  vary   the   language  of  goods  are  sold  under  a  memorandum 

the   policy.  *  to  be   paid   for   by  bill,  oral   evidence 

^Kaufman   Bros.    &   Co.   v.   Farley  U     inadmissible     to    show    that    bill 

Manf.    Co..   78   Iowa,    679,   43   N.   W.  means    approved    bill.       Hodgson    v. 

612,  16  Am.  St.  Rep.  462.  Davies.   2   Camp.   5.30.     So   in   an   ac- 

="  Brown   v.   Franklin   Mutual    Fire  tion    on    warranty   of    "prime    singed 

Insurance  Co.,   165   Mass.   5G5,  43  X.  bacon."  oral  evidence  was  rejected  of 

E.  512,  52  Am.  St.  Rep.  534.  a  practice  in  the  bacon  trade  to  re- 


Sec.  41.] 


Parol  Evidence  as  to  ^\RITI^■GS. 


145 


But  proof  of  the  usage  of  trade  is  not  admissible  to  contradict 
the  plain  words  of  an  instrument  not  used  in  a  tochnieal  sense. 
Oral  evidence  of  what  the  parties  meant  by  a  provision  m  the  sale 
of  a  cargo,  that  '^14  days  are  to  be  allowed  for  delivery,"  was  not 
admitted  ;  but  if  evidence  of  a  general  usage  explaining  those  words 
had  been  offered,  it  would  perhaps  have  been  admissible.^      In  a 
contract  for  the  sale  of  tallow  by  defendant  in  the  name  of  a  broker 
who  was  his  own  representative,  the  defendant  was  not  allowed  to 
■show  a  custom  of  trade  upon  such  a  contract  to  look  to  the  broker 
for  its  completion.^"    But  usage  of  trade  is  admissible  to  show  that 
the  broker  is  personally  liable  on  a  contract  of  sale  on  behalf  ol 
an  undisclosed  principal.^^  The  evidence  of  such  usages  may  be  con- 
firmed by  evidence  of  a  similar  custom  in  a  similar  trade  m  the 
same  place,  e.  g.,  in  the  colonial  market,  to  corroborate  the  usage 
in  the  fruit  market.^^     So  by  evidence  of  a  similar  custom  m  the 
same  trade  at  a  neigliboi'ing  place.-     Where  a  charter  party  was, 
siened  by  the  defendants,  "as  agents  for  merchants,    evidence  of  a 
custom  was  admitted  to  show  that  the  defendants  were  liable  on 
the  charter  party  as  principals,  if  jheir  principal's  name  was  not 
disclosed  within  a  reasonable  time.''* 


ceive    bacon   in    some   degree    tainted 
as  "  prime   sin<red   bacon."     Yates   \. 
Pvm,  6  Taunt.  440.     So  oral  evidence 
is     not     admissible    to     explain     the 
meaning  of  the  words  "  more  or  less 
in    a    mercantile    contract.    Cross    v. 
EWin,   2    B.  &    Ad.    100;   or   to   show 
that   "cargo"    and    "freight"    apply 
to  passenL'ers  as  well  as  goods,  L<>wis 
V    Marshall.   7   M.  &   G.  72fl :      or   to 
show  that  boats  on  the  outside  of  a 
bliip.  slung  upon  the  quarter,  are  not 
protected  bv  a  marine  policy  in  the 
usual  form  on  the  ship    and   furniture, 
Blackett  V.  R.  Exchange  Assur.   Co., 
"  C    &  J    ''-l-l;   or  to  show  a  custom 
within    the    port    of    London     that 
the   insurers   of   jettisoned   goods   are 
onlv  liable  for  the  share  of  the  loss 
cast    upon    the    owner    of    jettisoned 
^oods    in    the   general   average   state- 
ment. Dickenson  v.  Jardme.  L.  K.,  a 
C    P    039-   or   to   show   that   a    con- 
tract'to  sell  "ware  potatoes  "  means 
a    certain    sort   of    "  ^va re    potatoes 
Smith  V.  Jeffryes.  15  M.  &  \V.  o61 
or   that  on   a   contract  to   sell   wool 


"  to  be  paid  for  by  cash  in  one 
month,  less  5  per  cent,  discount,' 
the  vendor  has  a  lien  on  it  for  pay- 
ment bv  usage  of  the  trade.  Spar- 
tali  v.  Benecke,  10  C.  B.  212;  19  L. 
J.,  C.  P.  293;  C4odts  v.  Rose,  25  L. 
j!!  C.  p.  61.  The  case  of  Spartali  v. 
Benecke.  supra,  was  a  good  deal  ob- 
served upon  bv  the  Ex.  Ch.  in  Field 
V  T^lean.  0  H.  &  N.  627:  30  L.  J., 
Ex.  170.  a»te,  p.  24;  but  the  differ- 
ence of  opinion  is  not  as  to  the  prin- 
ciple, but  as  to  the  meaning  of  the 
contract  and  the  eflect  of  the  custom. 
See  also.  Pliillips  v.  Briard,  1  H.  & 
X.  21:   52  L.  J.,  Ex.  233. 

3°  Sotilichos  V.  Kemp,  3  Exch.   105. 

**Trueman   v.   Loder,    11    Ad.   &   E. 

589 

"Humfrey  v.  Dale,  7  E.  &  B.  266; 
see,  also.  Cropper  v.  Cook,  L.  R.,  3 
C.  P.  194,  199. 

"  Fleet  V.   Murton,  L.  R.,  7   Q.  B. 

^■"Plaice  V.  Allcock,  4  F.  &  F.  1074. 
"Hutchinson   v.  Tatham,  L.  R.,  8- 
C.  P.  482. 


l-i-i  Evidence.  [Chaj).  2. 

D.  Must  be  Established  by  Instance  of  its  Application. 

A  witness,  if  asked  whether  a  certain  usage  exists  in  a  particular 
trade,  who  answers  yes,  but  is  unable  to  give  instances  in  which  to 
his  knowledge  it  had  been  acted  upon,  proves  nothing.^^  It  is  not 
sufficient  to  show  by  a  witness  belonging  to  a  particular  trade,  that 
he  does  a  certain  thing  in  a  particular  way,  but  it  must  also  bo 
shown  that  that  is  the  usual  mode  adt)ptcd  in  the  trade.**  The 
course  adopted  by  the  trade  should  be  shown,^'  and  evidence  of  an 
isolated  instance  is  insufficient.*^  Isolated  instances  are  insufficient 
to  establish  a  custom,  as  for  instance,  to  prove  a  custom  of  a  rail- 
road to  give  clearance  eards  to  employees  on  their  leaving  the  ser- 
vice of  the  company.*^  ]jut  the  belief  of  a  witness  in  tiie  existence 
of  a  business  usage,  as  derived  from  a  knowledge  of  the  business 
for  a  long  series  of  years,  is  competent  to  prove  such  usage,  and 
it  is  immaterial  that  the  knowledge  is  derived  wholly  from  his 
own  business,  if  that  is  sufficiently  extensive  to  enable  him  to 
testify  to  the  fact  of  usage.^*'  It  is  not  necessary  that  die  witness 
should  l)e  engaged  in  a  particular  trade  or  business  to  make  him 
competent  to  testify  to  a  usage  pertaining  to  it.  It  is  sufficient 
if  he  has  acquired  his  knowledge  by  dealing  with  those  engaged  in 
it.^^  Thus,  in  the  case  last  cited,  it  was  held  that  the  customary 
mode  of  banks  in  respect  to  certain  matters  may  W  ])roved  by  a 
person  who  has  dealt  with,  but  never  employed  by  them.  So  the 
usual  mode  of  transferring  notes,  drafts,  etc.,  may  be  jimved  i»y  a 
witness  who  has  derived  a  knowledge  thereof  in  any  manner  that 
enables  him  to  testify  to  the  facts-^*  In  order  to  establish  the  ex- 
istence of  a  general  usage  among  banks,  or,  indeed,  in  any  business, 

"Hall    V.   Benson.   7   C.   &    P.   Oil;  tl.at     a     few     factors     at    that    place 

Cunningham    v.    Fonhlanque,    0    C.    &  v.nuld  not  do  so,  was  hold  insufficient 

P.  44;  Oearv  &  Mcuirher.  .'J3  Ala.  C30.  to  establi-h  a  usage  of  trade.     Anstili 

"  Pfiel  v.'KeniiKT.  3   Wis.   31.'j.     In  v    Crawford.  7  Ala.  33.5. 

this   case    it    was    sought    to    fix    the  *"  I?urr    v.     Sickle,     17     Ark.     428; 

value     of     professional     services     by  Greenfield    Bank    v.    Crafts,    2    Allen 

usage,  and  it  was  held  not  conipet<>nt  (Mass.).  200. 

to  ask  a  witness  what  he  should  *' Cleveland,  etc.,  Ry.  Co.  v.  Jen- 
have  charged  for  the  same  services;  kins,  174  III.  398,  51  N.  E.  811,  66 
but  that  the  evidence  must  be  either  Am.  St.  Rep.  296. 

to   the   value   of    the   services   or    the  ""Hamilton   v.   Nickerson,    13   Al'en 

customary   rate  of  compensation.  (Mass.  K  351. 

"Ruan   V.   Gardner.   1    Wash.    145;  "  Grippin  v.  Rice,  1  Hilt.   (X.  Y.  C. 

Winthrop  v.  Ins.  Co.,  2  id.  7;   Austin  P.)    184. 

V.  Williams,  2  Ohio.  (54.     Proof  that  "  Commercial    Bank    of   Pennsylv.i- 

a   particular   mode   of   selling  cotton  nia  v.  Union  Bank  of  New  York,   19 

in    Mobile    "is    very    commoH,"    but  Barb.   (X.  Y. )   392. 


Sec.  41.]  Pakol  Evidence  as  to  Writings.  145 

the  facts  must  be  shown;  that  is,  the  witness  must  state  what  is 
done,  how,  and  not  merely  his  opinion  deduced  from  the 
manner  of  dealing  in  a  few  instances  in  particular  banks.^^  The 
mere  opinion  of  witnesses  that,  in  certain  transactions  with  an 
agent,  it  is  customary  to  hold  him  responsible,  is  not  such  evi- 
dence of  a  custom  in  that  respect  as  will  exonerate  the  principal.'^* 
Evidence  that  certain  persons  understood  that  the  term  "minerals" 
was  not  to  include  granite  but  ores  containing  metals  is  insufficient 
to  establish  a  settled  and  recognized  usage  to  override  the  legal 
meaning  of  the  word.  A  custom  must  be  collected  "not  from  what 
witnesses  say  they  think  the  custom  is  but  from  what  was  pub- 
lically  done  throughout  the  district. "^^  A  usage  may  be  proved  by 
parol,  whether  it  arises  from  a  public  written  law  or  not,^^  and  the 
question  as  to  whether  or  not  it  can  be  established  by  the  evidence 
of  one  witness,  depends  upon  the  extent  of  his  experience  and 
knowledge  in  that  regard.  But  if  one  witness  swears  to  the  ex- 
istence of  a  certain  usage,  and  another  equally  competent  and  con- 
versant with  the  trade  or  business  to  which  it  relates,  the  existence 
of  the  usage  is  not  established,  especially  where  other  witnesses 
could  be  but  are  not  called."  But,  generally,  when  the  evidence 
is  conflicting,  it  should  be  submitted  to  the  jury  to  determine 
whether  the  usage  is  established  or  not.  But  where  there  is  only 
the  evidence  of  one  witness,  and  his  testimony  is  not  restricted  to 
any  particular  time  or  place,  and  tends  to  establish  a  usage  in  con- 
flict with  the  law  or  other  well  recognized  usages,  it  is  proper  for 
the  court  to  tell  the  jury  not  to  regard  it.^^ 

E.  General  Usage,  how  established.     By  one  Witness. 

A  general  usage  in  a'particular  place,  regulating  certain  matters, 
as  sales  on  commission,  may  always  be  shown  wlien  the  usage  is 

*'  Chesapeake    Bank    v.    Swain,    20  produced,   and   then    any    incident   to 

Md.  483.  it  arisinor  from   usajje  can   be  proved 

"Geary  v.  Meagher.  33   Ala.   630.  by     parol,     but    incidents    cannot    be 

"  Armstrong     v."   Lake    Chaniplain  proved    first    to    establish    the    exist- 

Granite  Co.,   147  N.  Y.  495,  42  N.  E.  ence   of   the    contract,    as    to    prove  a 

18(i,  40  Am.  St.  Rep.  683.  custom     of     a.    place     by     which     all 

^  Drake    v.     Hudson,     7     H.    &    -T.  notes      expire     at      a      certain   time. 

(Md.)    300:   Livingston    v.    Maryland  :Moore  v.   Eason,   11   Ired.    (N.  C.)    L. 

Ins.  Co.,  7  Granch  (U.  S.),  .506.'   But  568. 

where  it   is  sought  to   prove   a   usage  "  Parrott      v.      Thaeher,      9      Pick, 

as  an  incident  of  a  written  >?ontract,  (Mass.).   426. 

the    contract     itself    should    be    first  "Jewell  v.  Centre,  25  Ala.  498. 

10 


140  Evidence.  [Chap.  2. 

reasonable  and  not  contrary  to  law,  and  it  will  bo  presunifd  that 
every  one  dealing  where  such  usage  prevails,  knows  of  and  deals 
in  reference  to  it,^^  and  if  the  usage  is  not  so  general  as  to  uphold 
such  a  presumption,  his  knowledge  thereof  may  be  shown  by  the 
previous  course  of  dealing  between  the  parties,  and  this  furnishes 
sufficient  evidence  from  which  the  jury  may  infer  knowleilge  of 
the  usage.^*^  A  custom  in  order  to  change  the  riglit*  and  liabilities 
of  persons  arising  from  their  dealings  with  each  other  must  be 
certain  in  form  and  either  known  to  the  party  sought  to  be  charged 
tliereby,  or  so  general  and  notorious  that  knowledge  and  adoption 
of  it  may  be  presumed/'^ 

As  a  general  rule,  a  custom  cannot  be  establishetl  from  the  testi- 
mony of  one  witness.*"  Especially  is  this  the  case  when  the  cus- 
tom sought  to  be  established  is  one  in  favor  of  a  certain  town  or 
locality.  Thus,  in  a  case  where  it  was  sought  to  establish  a  custom 
for  all  the  inhabitants  of  a  certain  town  to  deposit  sea-wead  upon 
the  plaintiff's  land,  it  was  held  that  thirty  inhabitants  having  tes- 
tified that  they  had  done  so  for  many  years,  it  was  competent  evi- 
dence from  wliich  the  jury  might  find  the  custom."  In  all  cases^ 
in  order  to  establish  a  customary  right,  the  evidence  should  not  be 
less  tban  that  required  to  establish  a  prescriptive  right.*^  The 
burden  of  proving  either  a  custom  or  usage  of  trade  devolves  upon 
the  party  seeking  tlie  benefit  of  it,*^  and  must  be  shown  by  facts 
rather  than  the  belief  or  opinion  of  witnesses.  Thus  for  a  witness 
to  state  that  a  custom  or  usage  exists,  without  stating  instances 
where  it  has  been  acted  upon  or  applied,  proves  nothing,  because 

'"Dwight     V.     Wliitney,      15     Pick.  Const.     309;      \\  ood     v.     HiccK-k,     2 

( Mass.  j"^  170;      Goodnow  v.   Tyler,   7  Wend.    (N.  Y.)   501;  Bissell  v.  Rvan» 

Mass.  3G.                                          '  '-'-    111.    5(iG ;     Partridge    v.    Forsyth, 

«•  Walsh  V.  Frank.  10  Ark.  270.  29  Ala.  200. 

•'Russell's  Extx.  v.  Ferguson  (Vt.,  "  Knowles  v.  Dow,  22  N.  H.  387. 
1005).  00  A.  802.  T\here  certain  evi-  In  Hanmer  v.  Chace,  4  DeG.  J.  &  S. 
dence  was  held  insufficient  to  prove  a  620.  it  was  held  that  a  custom  of  a 
binding  custom  making  attorneys  manor  might  be  proved  by  one  in- 
liable  to  a  iustice  for  fees  in  cases  stance,  and  in  a  suit  by  the  lord  to 
entered  by  the  attorneys.  Evidence  restrain  a  copyholder  from  digging 
as  to  a  custom  of  elevatormen  was  vitreous  sand  on  his  own  tenement, 
held  incompetent  without  proof  that  evidence  of  a  custom  to  dig  it  for 
uie  custom  was  known  to  both  par-  twenty-seven  years,  and  of  a  custom 
ties  or  was  so  notorious  as  to  fur-  to  dig  sand  generally,  was  suflBcient 
nish  a  presumption  of  knowledge,  in  to  establish  the  custom. 
McSherry  v.  Blanchfield,  68  Kan.  310,  "Smith  v.  Floyd,  18  Barb.  (N.  Y.> 
75  Pac.  '121.  523. 

*=Vait    v.     Rice,     5     N.     Y.     150;  °=Caldecott  v.  Smythies,  7  C.  &  P- 

Thomas    v.    Graves,    1    Mill     (S.    C.)  808. 


Sec.  41.]  Parol  Evidence  as  to  Writings.  147 

the  whole  matter  rests  in  his  opinion  or  belief,  but  if  he  can  speak 
from  instances  in  which  it  has  been  acted  upon,  facts  are  then  pre- 
sented from  which  the  jury  can  arrive  at  a  conclusion.^®  While 
a  custom  or  a  usage,  at  a  place  distant  from  that  in  which  it  is 
sought  to  apply  it,  may  be  shown  as  tending  to  establish  such  cus- 
tom or  usage  at  the  place  where  it  is  sought  to  give  it  effect,  yet  it 
has  no  such  tendency  unless  instances,  in  which  it  has  been  acted 
upon,  are  shown  at  such  place."  But  proof  of  a  single  instance  at 
.the  place  in  question  may  be  sufficient,  unless  the  effect  of  such 
evidence  is  antagonized  by  proof  of  similar  transactions  in  sim- 
ilar establishments  in  which  it  was  not  acted  upon.*^*  To  establish 
a  custom  of  shippers  on  a  certain  river,  it  is  competent  for  a  wit- 
ness to  state  his  practice  in  that  respect  on  all  boats  on  the  river.®^ 
The  fact  that  a  person  whom  it  is  sought  to  affect  by  a  local  custom 
or  usage,  lives  at  a  great  distance  from  the  place  where  the  custom, 
etc.,  exists,  does  not,  if  the  transaction  had  its  situs  at  such  place, 
tend  to  overcome  the  presumption  that  he  knew  of  the  custom  and 
contracts  in  reference  to  it,  as  it  is  regarded  as  reasonable  to  pre- 
sume that  a  person  knows  the  custom  and  usages  of  a  place  at 
which  he  traffics,  wherever  he  may  reside.^"  In  order  to  establish 
a  usage  of  a  certain  trade  or  business,  the  testimony  should  come 
from  those  engaged  in  the  business,  or  those  who  are  familiar  witli 
the  existence  and  application  of  the  usage,  but  the  testimony  of  a 
single  witness,  who  testifies  that  he  knew  what  had  been  the  custom 
of  his  neighbors  for  several  years,  in  relation  to  certain  matters — 
as  in  the  case  cited  below,  the  manner  in  which  fai'tners  receive 
their  supplies  from  merchants  who  advanced  to  them — is  not  suffi- 
cient to  establish  a  usage.^^ 

An  occasional  practice  tolerated  to  a  certain  extent  in  a  certain 
department  of  business  for  any  given  year,  cannot  be  said  to  bo 
made  out,  without  distinct  proof  of  some  specific  instances  during 

'"' Henderson  v.  Charnock,  Peake,  4.  merchants,      where      merchandise      is 

"  Brown     v.     Wilkinson,     Co.     Lit.  sold  on  condition,  to  deliver  it  to  the 

2706;     Milward    v.    Hilbert,   3    Q.    B.  buyer    before    the    condition    is    com- 

120.  plied   with,   and   that   such   a   change 

"*  Citizens'    Ins.    Co.    v.    McLaugh-  of  possession  is  not  in  fact  a  waiver 

lin,    53    Penn.    St.    485;      Sumner    v.  of    such    condition,    is    admissible    to 

Lyton,  20  N.  H.  384.  establish    the    fact   that    the    title   to 

"  Berry  v.  Cooper,  28  Ga.  543.  ihe    property    did    not    pass   by    such 

'°  Dwight     V.     Whitney.     15     Pick.  delivery.      Farlow   v.    Ellis,    15    Gray 

(Mass.)     179:   Gcodenow   v.   Tyler,    7  (:\Iass.),  f:29. 

Mass.  36.     Proof  of  a   custom  among  "  Smith  v.  Wright,  56  Ala.   417. 


148 


E\I1)KXCE. 


[Chap.  2. 


the  period  in  question.  '"  Opinions  or  conclusions  of  witnesses  as 
to  the  effect  of  a  usage  of  trade  either  upon  a  contract  or  the  legal 
rights  of  parties  are  nut  ailiiiissLble  to  show  either  the  character  or 
force  of  the  usage.'^ 

If  a  usage  in  the  conduct  of  a  particular  business  is  established 
in  one  locality,  it  will,  in  the  absence  of  evidence  to  the  contrary, 
be  presumed  that  it  prevails  in  other  similar  establishments,  at  least 
in  the  vicinitv. 


"Chenery  v.  Goodricli.  100  Mass. 
666. 

"Haskins  v.  Warren,  115  Mass. 
514. 

In  onlor  to  di^^prove  the  applica- 
tion of  a  usufie  or  of  rpjjxilations  of 
a  board,  an  a  (."hainlu'r  of  (oiniiu'rco, 
liavinjj  f'or[)orato  powt-rs.  to  appoint 
an  inspc.tur  of  (vrtain  classes  of 
goods,  as  in  the  case  cited  l)elo\v.  one 
of  tlie  purposes  of  the  rules  of  wliiih 
is  declared  to  be,  "  To  estal)lish  uni- 
formity in  the  commercial  usages 
of  the'  city,"  to  a  certain  class  of 
proiKMty.  it  is  competent  to  show 
that  certain  classes  of  articles  are 
specified  as  subject  to  the  rules  or 
usage,  but  that  tlie  article  in  (pies- 
tion  is  not  named,  ami  the  etFect  of 
this  is  to  show  tlie  non-existence  of 
sucli  usage  as  to  the  articles  not 
named.  Kershaw  v.  Wriglit,  115 
Mass.  30 1. 

Thus,  in  a  Pennsylvania  case.  Citi- 
zens' Ins.  Co.  V.'  McLaughlin,  53 
Penn.  St.  4S5,  a  policy  was  issued  by 
the  defendant  upon  a  patent  leatluT 
manufactory  in  Pittsburgh,  Pa.,  Im?- 
Icnging  to  the  phiintilf.  The  policy 
provided  tliat  benzole  in  quantities 
rot  exceeding  five  barrels  miglit  be 
kept  in  a  shed  detached  from  and  in 
the  rear  of  tlie  main  building,  and 
nowhere  else  on  said  premises.  It 
vas  well  known  that  benzole  was  an 
important  and  essential  article  in 
the  prosecution  of  the  business  and 
was  necessarily  and  universally  used. 
The  custom  of  the  plaintiff's  work- 
men was  to  carry  an  open  bucket  of 
it  into  the  factory  a-s  often  as 
■wanted,  and  upon  the  morning  of 
the  fire  a  workman  carried  an  open 
bucket  of  it  into  the  factory  and  set 
it  down,  wlie.i  it  almost  instantly 
ignited,      and,      communicating      the 


fiames  to  tlie  building,  it  was  l)uriuil 
down.  To  prove  that  the  methml  of 
carrying  tlie  lienzole  into  tlie  factory 
in  open  buckets  was  accoriling  to  the  ' 
cii>ti>m  of  the  trade,  it  was  shown  by  / 
tlie  testimony  of  a  witness  tliat  it  ' 
was  the  custom  in  ticvlve  similar 
factories  in  Newark,  New  Jersey. 
and  no  evidence  beinij  introduced  lo 
show  a  contrail/  custom  in  Pitts- 
burffh,  where  the  plaintiff's  factory 
was  locate<l,  it  was  held  siilVicient  to 
(stablish  the  usage  in  I'ittsburgh. 
Wooow.vRi).  .1.,  upon  tliis  point,  said 
"  We  think  there  was  no  error  in  tlie 
admission  of  the  evidence  of  Harden. 
He  gave  an  intelligible  account  of 
the  mode  of  u>ing  benzole  in  twelve 
similar  factories  in  Newark,  New 
Jersey,  and  said  it  was  brought  in 
and  used  from  cans  and  buckets.  If 
anil  other  custom  had  been  estab- 
lished at  I'ittstnirijh  it  could  have 
been  shoun,  but  in  the  absence  of  nil 
other  eiidrner  on  the  subject,  thia 
vas  competent  to  fix  the  usa<jc  of  the 
business."  Thus  it  will  be  seen  that 
while  the  usage  of  a  certain  trade  in 
one  locality  is  not  nece-sarily  the 
u.sage  of  the  same  trade  in  another, 
yet  such  usage  i  lay  Ik-  proved,  and, 
unless  a  different  usage  is  shown  to 
exist  in  the  locality  to  which  it  is 
.■nought  to  apply  it,  it  will  be  pre- 
sumed to  be  usage  of  the  trade  in 
that  localitv.  In  a  New  Hanipshire 
case,  Sumner  v.  Tyson.  20  N.  H.  384, 
evidence  of  a  custom  among  iron 
manufacturers  to  warrant  the  qual- 
ity of  all  the  goods  made  by  them 
was  held  to  be  established  by  prcxif 
of  such  a  custom  in  three  similar  es- 
tablishments in  the  vicinity,  there 
being  no  evidence  of  a  contrary  cus- 
tom in  any  other  similar  establish- 
ment. 


Sec.  41.]  Pakoi.  Evidence  as  to  Writings.  149 

A  usage  must  be  proved  by  evidence  of  facts  and  instances  in 
^vhich  it  has  been  acted  upon,''^  and  in  a  ease  where  the  questioa 
M-as,  whether  a  certain  practice  had  been  tolerated  to  a  certain  ex-  . 
tent'  at  a  custom  house,  the  party  denying  the  practice  was  held 
entitled  to  a  ruling  that  the  practice  isnot  established  if  no  wit- 
ness can  recall  a  specific  instance  of  it.''^ 

F.  Mere  Conflict  of  Evidence  as  to,  does  not  defeat. 

\Miile  it  may  be  considered  settled  at  this  day,  according  to  tlie 
views  of  Gray,  C.  J.,  as  expressed  in  Jones  v.  Hoey,  128  Mass.  585, 
that  a  custom  may  be  established  by  one  witness,  yet  the  testimony 
of  that  witness  must  be  sufficiently  convincing  and  patent  to  create 
in  the  minds  of  the  jurors  a  full  conviction  of  the  existence  of  the 
custom.    A  custom  cannot  be  said  to  be  an  established  one  if  it  is  m 
serious  dispute  and  can  only  be  determined  by  carefully  and  nicely 
adjusting  the  scales  to  ascertain  which  side  preponderates.     The 
character  and  description  of  evidence  admissible  for  establishing 
the  custom  is  the  fact  of  a  general  usage  and  practice  prevailing 
in  the  particular  trade  or  business,  and  not  the  opinions  of  wit- 
nesses as  to  the  fairness  or  reasonableness  of  it.     While  many 
early  cases  hold  that  the  custom  could  not  be  established  by  one 
witness,  this  rule  has  been  almost  universally  departed  from.     It 
is  nevertheless  true  that  tlie  custom  must  be  proved  by  evidence 
sufficient  to  satisfy  the  jury  clearly  and  convincingly  that  such  a 
usage  existed  as  can  fairly  be  presumed  to  have  entered  into  the 
intention  of  the  parties  when  they  entered  into  the  contract.     The 
character  of  the  proof  must  be  clear,  cogent,  and  convincing  as  to 
the  antiquity, duration,  and  universality  of  the  usage  in  the  locality 
where  it  is  claimed  to  exist.    Where  the  evidence  is  uncertain  and 
contradictory,  the  custom  is  not  established,  an-l  the  court  should 
so  instruct  the  jury.     So  an  instruction  that  the  custom  may  be 
established  by  a  preponderance  of  the  evidence  is  erroneous.'® 

The  mere  fact  that  the  evidence  is  conflicting  does  not  entitle 
the  party,  against  whom  the  usage  is  invoked,  to  a  ruling  that  the 
usage  is  not  proved,  but  it  is  for  the  jury  to  say  from  all  the  evi- 

'Mlilh  V    Hallock,  4  Edw.  Ch.   (N.  « Penland   v.  Ingle    (N".   C,   1905), 

Y      65^       '  ^^  ^-  ^-  ^'^^'     ^^'^*<''"  ^^  *^  cominis- 

"^  Chenery   v.    Goodrich,    106    Mass.       sion  of  real  estate  brokers. 


566. 


ir.o 


Evidence. 


[Chap.  2. 


clence  ■whether  or  not  the  usage  is  established.''  But  if  oulv  one 
witness  testifies  to  the  existence  of  a  usage,  and  another  equally 
competent  and  of  eqiuil  credibility  contradicts  such  evidence,  it 
is  not  proj)er  to  leave  it  for  the  jury  to  say  whether  the  usage  is 
established  or  not,  but  tlicv  should  be  instructed  that  the  evidence 
is  insufficient."^     Up(Ui  the  (pu'stion  as  to  whether  a  certain  usage 


''  Upton  V.  Sturbridpc  Cotton 
Mills.  Ill  ]\ras3,  440.  In  Winsor  v. 
Delhiway,  4  Mot.  (Mass.)  221,  where 
rcintiailictoiy  evidence  was  oflercd  as 
to  the  existence  of  a  usage  on  which 
the  plaintilT  relied  to  supi)ort  his 
action,  and  the  jury  were  instructed 
that,  if  it  was  proved  tiuit  the  usage 
existed,  and  the  defendant  knew  it 
existed,  tile  plaintitl"  was  entitled  to 
recover,  and  tlie  jury  tlieren|)on  re- 
turned a  verdict  for  tiie  defemlant; 
it  was  held  that  the  i)laintiir  had  no 
cause  of  exception  to  such  instruc- 
tion. See,  also,  Tunell  v.  Carter,  25 
Ala.  498,  to   same  effect. 

"Parrott  v.  Thaclier,  0  Pick, 
(^lass.)  42G.  In  the  absence  of  bet- 
ter proof  it  was  held  that  eviilence 
of  long  and  uninterrupted  usage, 
reputation,  the  doch' rations  and 
conduct  of  the  owners  of  the  ad- 
joining land,  and  tiie  public  acts  of 
the  tov.n,  was  i)ropeily  admitted  to 
j-rove  that  an  ancient  corporation  of 
proprietors,  now  extinct,  had  dedi- 
catetl  a  certain  lot  to  the  public  use, 
as  a  landing  place.  Severs  case,  G 
Me.  lis.  Evidence  by  a  justice  of 
the  peace  that,  when  called  upon  by 
j.arties  to  prepare  conveyances  foi 
them,  it  was  his  hal-it  to  inquire 
Avhether  they  desired  absolute  or  con- 
ditional .onveyanocs ;  that  he  had  no 
doubt  such  inquiry  was  made  in  the 
present  instance;  that  he  never  failed 
to  shape  the  paper  according  to  the 
expressed  object  of  the  parties;  and 
that  he  was  also  in  the  habit  of  read- 
ing the  papers  after  they  were  writ- 
ten to  those  for  whom  they  were  pre- 
pared, and  especially  if  they  were 
workmen,  was  held  inadmissible. 
Pocock  V.  Hendricks,  S  G.  &  J.  (  Md.) 
421.  In  an  action  by  commission 
merchants  iu  Boston,  to  recover  back 
money  paid  to  the  consignor  of  goods 
sold  by  the  plaintiffs  to  a  trader  in 
the   country,   who   failed   to   pay   for 


them,  evidence  to  show  a  usage  of 
factors  in  Boston  to  credit  the 
amount  of  sales  immediately  to  the 
account  of  the  principal,  and  charge 
back  in  case  of  the  insolvency  of  the 
jmrchaser,  in  case  the  factor  has  not 
been  negligent  ;  and  also  to  show  the 
usage  as  to  the  credit  given  to  city 
and  comitiy  purchasers,  was  held  to 
be  admissilile.  Dwight  v.  Whitney, 
1,')  Pick.  <.Mass)  17!>.  Witnesses 
may  be  examined  to  prove  the  course 
of  a  particular  trade,  but  not  to 
show  what  the  law  of  that  trade  is. 
Kuan  V.  Gardner.  1  Wash.  ( U.  S.) 
145;  Austin  v.  Taylor,  2  Ohio,  G4. 
A  witness,  who  had  lived  both  in 
New  York  and  Mobile,  understood  it 
wna  the  custom  of  merchants  that 
the  employer  shouhl  pay  the  expenses, 
and  pa.s;iage  of  <  leiks  wlio  were  en- 
gaged in  the  former  place  to  do  ser- 
vice in  the  latter  place,  for  the  whole 
of  the  ensuing  i)usiness  season ;  that 
the  witness,  who  was  a  mercharit, 
had  never  so  employed  or  paid  a 
clerk,  but  he  knew  of  one  case  where, 
under  a  stipulation  to  tliat  effect,  the 
vages  and  passage  money  of  a  clerk 
thus  employed  were  paid  by  the  em- 
ployer. Held,  that  this  evidence 
was  inadmissible,  aiul  consequently 
incomi)etent  to  establish  the  usage  or 
custom  of  trade.  Price  v.  White,  9 
Ala.  563.  The  plaintiff  having  proved 
that  a  steamboat  of  the  defendants 
was  engaged  in  carrying  goods  and 
merchandise,  generally,  for  hire,  and 
the  general  custom  of  boats  engaged 
ii:  similar  business  with  that  of  the 
defendant,  held  that  it  was  admissi- 
ble for  the  defendant  to  explain  the 
usage,  by  showing  that  no. freight  or 
compensation  was  ever  charged  or 
allowed  ujwn  remittance  of  money, 
unless  some  evidence  was  given  by 
the  boat  of  its  receipt,  in  Avhich 
event  only,  a  charge  was  made.  Knox 
V.  Rives,  'l4  Ala.  249. 


Sec.  41.]  Parol  Evidence  as  to  Writings.  151 

exists  or  not,  a  witness  may  be  asked  to  describe  how,  under  the 
usage,  a  transaction  like  the  one  in  question  wouM  be  conducted 
bj  all  the  parties  thereto  from  its  inception  to  its  conclusion.^^  It 
may  be  said  that  a  usage  of  a  trade  must  he  proved  hy  the  multi- 
plication or  aggregation  of  a  great  number  of  particular  instances, 
showing  a  given  course  of  business,  and  a  general,  established  un- 
dertaking' respecting  it.^'^  It  is  not  necessary  that  there  should  be 
either  the  antiquity,  uniformity  or  notoriety  that  is  essential  to 
establish  a  custom  ;  it  is  sufficient  if  it  is  shown  to  be  so  well  known 
and  so  generally  acquiesced  in  that  it  may  reasonably  be  pre- 
sumed to  have  been  imported  into  their  contract  by  the  parties}^ 
In  a  word,  it  must  be  shown  that  the  usage  is  certain  and  reason- 
able, and  so  universally  acquiesced  in  that  every  one  engaged  in 
the  trade  knows  it,  or  might  know  it  if  he  exercised  reasonable 
-diligence  in  making  inquiry.^^ 

G.  Effect  of  Local  or  Trade  Usage. 

There  is  a  clear  distinction  between  usage,  however  general,  and 
custom.  Usage  is  local  practice  and  must  be  proved.  Custom  is 
general  practice  judicially  noticed  with  proof.  Usage  consists  of 
a  repetition  of  facts.  Custom  arises  out  of  this  repetition.  Usage 
is  the  evidence  of  custom.  There  may  exist  a  usage  that  would 
affect  or  control  the  contract  and  yet  not  reach  the  dignity  of  a 
custom  or  law.^^ 

A  mere  local  usage  is  not  binding  upon  a  party  imless  he  has 
notice  or  knowledge  of  its  existence  at  the  time  when  the  contract 
was  entered  into,**  and  the  burden  of  establishing  knowledge  is 
on  the  party  setting  it  up,*^  or  it  must  be  sho\\'n  to  be  so  general 

"Kershaw    v.    Wright,    115    Mass.  batross  v.  Wayne,   16  Ohio,  513;  Lat- 

361.  imer     v.     Alexander,     14     Ga.     250; 

«»MacKenzie    v.    Dunlop.    3    Macq.  Flynn  v.  Murphy,  2  E.  D.  S.    (X.   Y. 

H.  L.   Cas.  22.  C.   P.)    378;   Balnard  v.   Kellogg,    10 

"Juggomohun    Ghore    v.    Manick-  Wall.    (U.S.)   383. 
hund,  7  Moore  Ind.  App.  263.  "  Baxter  v.  Sherman,  73  Minn.  434, 

"Place  V.  Allcock,  4  F.  &  F.  1074.  76  N.  W.   211,  72  Am.   St.  Rep.   031. 

'^  Power  V.  Bowdle,  3  X.  D.  107,  54  A  local   custom   of  merchant  brokers 

N.  W.  404,  44  Am.  St.  Rep.  511.  is  not  binding  on  a  non-resident  ship- 

^  Kirchner    v.    Venus^    12    Moo.    P.  per  unless   he  had   knowledge  of   the 

C,   N.   S.   3G1;   Rogers   v.   Mechanics'  custom  and   consented   to  it.     S.    W. 

Ins.  Co.,  1  Storv   (U.  S.),  003;  Hall  Baconi    Fruit    Co.    v.    Blessing    (Ga., 

V.  Howell,  Harp".    (S.  C.)    427;   Simp-  1905),  50  S.  E.   139. 
£tn   V.   Margetson,    11    Q.   B.   32;   Al- 


152  Evidence.  [Chap.  2. 

that  the  parties  are  presumed  to  have  knowledge  of  it.*'*'  Thus 
where  a  custom  in  a  certain  city  to  suspend  business;  <>n  tlie  Fourth 
of  July  is  settled,  well  established  and  generally  known,  one  ship- 
ping goods  to  that  city  is  bound  by  the  custom,  although  he  has 
no  personal  knowledge  of  it.  A  custom  or  usage  will  not  be  held 
binding  if  it  be  unreasonable  and  it  cannot  be  used  for  the  pur- 
pose of  varying  the  terms  of  the  contract  or  violating  a  certain  rule 
of  law,  but  where  a  contract  re(iuired  a  railway  Citmpany  to  trans- 
port goods  to  their  destination  according  to  its  regular  course  of 
business  and  with  all  reasonable  dis])atch  the  custom  of  suspending 
business  on  the  Fourth  of  July  did  not  vary  the  contract  and  was 
binding  on  the  ])arties."  But  a  local  custom  of  the  meaning  of 
the  term  "cash  sale"  has  been  held  inadmissible  to  bind  one  living 
outside  without  notice  of  it.***  The  usage  or  custom  of  a  particular 
port,  in  a  particular  trade,  is  not  such  a  usage  or  custom  as  will, 
in  contemplation  of  law,  limit,  control  >>r  qualify' the  iangmige  of  a 
contract  of  insurance.  It  must  be  some  L-iioim,  griwrnl  usage  or 
custom  in  the  trade,  both  applicable  and  ajtplied  to  all  ])orts  of  the 
State,  and  so  notorious  as  to  affnr<l  a  ]>resuni]iti<in  that  all  con- 
tracts of  insurance  in  that  trade  are  nuide  in  reference  to  it  as  a 
part  of  the  policy.^^  So  a  fire  insurance  company  doing  business 
upon  the  Pacific  coast  may  be  bound  by  a  custom  among  such 
companies  Avhen  granting  re-insurance  to  other  fire  insurance  com- 
panies to  charge  and  collect  premiums  as  and  from  the  date  of  re- 
insurance and  to  write  other  policies  so  as  to  cover  their  insurance 
from  the  date  upon  which  their  insurance  is  granted.***  Indeed, 
any  usage,  to  be  binding,  must  be  established  by  such  clear  and 
satisfactory  evidence  that  a  presumption  naturally  arises  that  the 
parties  contracted  in  reference  to  it.*^ 

A  custom  in  a  place  from  which  goods  are  shipped,  is  not  nec- 
essarily binding  upon  a  consignee  at  another  place,  and  from  the 

"John  O'Brien  Lumhcr  Co.  v.  Wil-  v.   Dodd,    13   id.   3.3;        McMiisters  v, 

kinson   (Wis..  1004).  101  N.  W.  1050.  R.  R.  Co.,  GO   id.   374. 

"  Penn.     Railroad     Co.     v.     Naive  **  L'nion  Insurance  Co.  v.  American 

(Tenn.,  1904),  79  S.  W.  124.  Fire  Insurance  Co..   107   Cal.  327,  40 

"'Rake  v.  Towmsend    (Iowa.  1905),  P.  431,  48  Am.  St.  Rep.  140. 
102  N.  W.  499.  "Bowling  v.  Harrison.  G  How.    (U. 

"Rogers    v.    ^Mechanics'    Ins.     Co.,  S. )    259;      Strong   v.    Carrington,    11 

ante;  Pittsburgh    Ins.    Co.    v.    Dravo,  Am.  Law  Reg.  287;   Olericks  v.  Ford, 

2  Weekly  Xot«s  Cases,  194;     Dean  v.  23    How.     (U.    8.)     49;      Collings    v. 

Swoop,  2  Binn.    (Penn.)    72;     Adams  Hope.   3   Wash.    ( U.   S.    C.   C.)    149; 

V.  Ins.  Co.,  76  Penn.  St.  411;     Cope  Pierpont  v.  Fowle,  2  W.  &  M.   (U.  S. 

C.  C.)   24. 


Sec.  41.]  Parol  Evidence  as  to  Writings.  153 

mere  fact  of  the  existence  of  a  certain  custom  at  the  place  of  ship- 
ment, a  jiirv  would  not  be  warranted  in  presuming  that  such  a 
usao-e  existed  at  the  place  to  which  the  goods  were  consigned. 
Thu«  the  fact  that  a  usage  existed  at  a  city  from  which  goods  were 
shipped,  that  the  bill  of  lading  shall  not  be  detached  from  the 
draft  until  the  draft  is  paid,  was  held  not  sufficient  to  warrant  the 
jury  in  presuming  that  such  usage  existed  in  a  neighboring  city 
to  which  the  cargo  was  consigned.''    In  order  to  make  such  a  usage 
valid,  it  must  be  recognized  and  acted  upon  in  both  cities,  and 
mere  proof  of  its  existence  in  one  place  does  not  warrant  an  in- 
ference that  it  exists  at  another.'^    But  when  instances  of  its  ap- 
plication in  one  place  are  shown,  it  may  be  shown  to  exist  m  other 
places  for  the  purpose  of  establishing  uniformity  or  notoriety. 
The  usage  at  the  place  of  manufacture  prevails,  rather  than  the 
place  of  sale,  where  the  contract  relates  to  the  manufacture  of  an 

article. ^^ 

In  Xew  York  it  is  held  that  proof  of  a  local  usage  is  inadmis- 
sible to  control  the  rules  of  law  respecting  a  particular  trade;  '' 
or  to  vary  an  express  agreement ;  ''  or  add  incidents  thereto  con- 
trary to  'the  rules  of  the  general  law,  as  to  import  a  warranty 
wheie  caveat  emptor  applies  f  or  to  qualify  the  plain  provisions 
of  a  contract  about  which  there  is  no  ambiguity ;  ''  or  to  contradict 
its  plain  legal  import  -^  or  to  overcome  a  settled  rule  of  commer- 
cial law,  but  it  mav  be  received  to  explain  it.'''    A  local  usage  can- 


''Kirohner  v    Venus.   12  Moore  P.  Co.,  25  Barb.    (N.  Y.)    310;  Groat  v. 

C    C    3017   W    R    4.^5:      Mears  v.  Gile,  51  N.  Y.  431;   Simmons  v.  Law, 

^^K.^;c^Tk;Sn;::tal  Ins.  Co.,  '  ^Hol.LV  ^n.iH,  1  H.n   (N. 

OR  aS    l-^l  Y.),  310;   Allen  v.  Dykers.  3  Hill   (N. 

.4r&V.i"io.     V.     More,,     .08  )--;  -"rS,,  v.^-^.f  ."S^i 

-HiL-ins  V.  Moore,  34  N.  Y.  417;  (N.  Y.),  602;   Lawrence  y.  Maxwell 

nit,,iiis  >.  ^1         ,        ,r               =.>  53  N.  Y.  19;     Tavlor  v.  Ketcluun,  35 

Minnesota   R.   R.   Lo.   \.    Morgan,   o-  oo  i^.   jl-  ^^,          .                 vVnrl^wnrth 

Barb    (N    Y.)   217;   Bissell  v.  Camp-  How.    Pr.    (^.   Y-)    289;   \\ad.vM)rtli 

S]   ■'S4  N    Y    353  V.  Alcot,  6  N.  Y.  64;   Spears  v.  Hart, 

''"'Main'^v.^agt  1  E.  D.  S.    (N.  Y.  3    Robt.     (X.    IM     420;     Curne    v. 

C    P.)    619;    Stebbins  v.    Brown,   65  Smith,    4    Leg.    Obs.     (X.    Y  )     343. 

Barb     (N.   Y.)    274;   Beats  v.   Terry,  I^ne    v.    Bailey,    4/    Barb.     (N.    Y.) 

2  Sandf      N    Y)    127  395;   Wall    v.    Ins.    Co.,    3    Duer    (N. 

?«Hawe    V.  Lawrence,  3  Sandf.    (N.  Y.),    264;  Bargett    v^    Oriental    Ins. 

Y.)     193;   also   4    X.   Y.    345;   Beirne  Co.,  3  Bos.    (X.  Y)    38o ;   Suydam  v. 

V    nnrd   \  N    Y    95  Clark,  2   Sandf.    (^.  Y.)    133. 

"  ~  ?Inend^r  v.'  Snsmore.   55   X.   Y.  -  Firth  v.  Barker,  2  John.    (X.   Y  ) 

200-    Bradley  v.  Wheeler,  44  id.  495;  327;      Emery  v.  Dunbar,   1  Jaly    (N 

Mer^antne,  &c.,  Ins.  Co.  v.  State  Ins.  Y.  C.  P.),  408;  Bowen  v.  Newell,  d 


154 


Evidence. 


[Chap.  2. 


not  be  given  eflfect  to  vary  a  contract,  as  a  usage  for  pledgees  of 
stock  to  transfer  it  at  pleasure,  when  the  contract  of  pledge  only 
provided  that  it  might  be  transferred  after  default.'"'  But  in  an 
action  against  a  pawnbroker  for  conversion  in  selling  an  article 
pawned,  the  defendant  may  prove  a  general  custom  of  pawnbrokers 
known  to  the  plaintiff,  to  sell  unredeemed  pledges  after  si.x 
months.'"^  No  evidence  will  be  received  of  a  usage  offered  to 
alter  the  legal  effect  of  an  insurance  j^olicy,''^^  or  of  a  usage  to 
satisfy  contracts  for  the  sale  of  tlcnir  of  a  si)ecitied  brand,  by  the 
delivery  of  other  brands  of  equal  or  better  quality.^*^^  Or  to  admit 
of  the  delivery  of  an  article  made  from  different  materials  from 
those  specified  in  a  contract,  as  where  a  contract  is  to  build  a 
**  black  uxihnii  "  counter,  to  show  that  it  is  customary  to  make 
the  tops  and  door  jianels  of  such  counters  of  stained  white  wood.*''* 
Or  to  treat  as  a  delivery  that  which  is  not  in  law  a  delivery.*"^  A 
local  usage  can  never  vary  the  construction  of  a  contract,  unles  it 
is  clearly  proved  that  its  existence  was  known  to  the  parties,  and 
that  their  contract  was  made  in  reference  to  its  terms.**'^  Xor  if 
it  contradicts  the  contract. "^^     Where  the  plaintiff  is  nuide  by  con- 


K.  Y.  1!>0;  Gibson  v.  Culver,  17 
Wend.    (N.  Y.)    305. 

""Dvkers  v.  Allen,  7  Hill  i  N.  Y.), 
497;  amrming  S.  C,  3  id.  5f)3 ;  Vail 
V.  Rice,  5  X.  Y.  155;  Currie  v. 
Smith,  4  Leg.  Obs.    (N.  Y.)    343. 

'*'  Stern  v.  Leopold  Simons  &  Co. 
(Conn.,   1904),  58  A.  690. 

"^Stebbins  v.  Globe  In.>*.  Co.,  2 
Hall  (N.  Y.),  632;  Mutual  Safety 
Ins.  Co.  V.  Hone,  2  X.  Y.  235. 

"»Beals  V.  Terry,  2  Sandf.  (X.  Y.) 
127. 

"*Greenstine  v.  Borchard,  60  Mich. 
434;   45   Am.   Rep.   51. 

"'Suvdam  v.  Clark,  2  Sandf.  (X. 
Y.)  133;  and  see  Smith  v.  L\-nes,  5 
N.  Y.  41. 

"'  Wheeler  v.  Xewbould,  5  Duer 
(N.  Y.),  29;  aflfd.,  16  X.  Y.  392. 

"•Sweet     V.  Jenkins,   1  R.  I.   147. 

A  custom  of  a  particular  locality 
for  the  owner  of  a  lot  of  land,  after 
giving  notice  to  the  owner  of  an  ad- 
joining lot  to  build  his  half  of  a  par- 
tition fence,  and  his  refusal  to  do  so, 
to  build  the  whole,  and  hold  the 
party  refusing  for  his  share  of  the 
expense,  has  been  held  to  be  a  reason- 
able and  just  custom,  which  may  be 


enforced.  Knox  v.  Artnian,  3  Rich. 
(S.  C. )  283.  A  shipper  of  goofls  is 
chargeable  with  notice  of  an  estab- 
lished and  well-known  usage,  exist- 
ing in  a  particular  trade,  in  regard 
to  the  stowage  of  a  general  sliip, 
both  as  to  the  manner  of  stowing, 
and  as  to  the  different  articles  to  be 
stowed  together.  And  if  the  shipper, 
in  such  ca>e,  gives  no  special  instruc- 
tions, and  his  goo<ls  are  stowed  in 
conformity  with  such  usage,  he  is 
deemed  to  have  assented  to  such 
mode  of  stowage,  and  cannot,  in  case 
his  goods  are  injured  on  the  voyage. 
In  consequence  of  the  mode  of  stow- 
age, set  that  up  as  a  ground  of  com- 
plaint, or  as  a  foundation  for  depriv- 
ing the  owniers  of  their  freight.  Bax- 
ter v.  Leland.  1  Blatch.  (  f.  S.  C.  C.) 
526.  Where  a  cargo  was  carried  by 
a  vessel  "  addressed  to "  the  owner 
of  the  cargo,  he  was  held  to  be  en- 
titled to  no  commissions  on  thd 
freight,  and  any  usage  giving  him 
commissions  in  such  a  case  was  held 
to  be  an  unreasonable  one,  and  the 
shipper  was  allowed  no  deduction 
from  the  freight,  because  wood  and 
water,   usually   stowed   on   deck,   had 


Sec.  41.] 


Parol  Evidence  as  to  Writings. 


155 


tract  the  "  exclusive  agent  "  of  the  defendant  in  a  certain  district, 
evidence  is  admissible  of  a  trade  usage  giving  him  commissions 
on  all  sales  made  by  others  in  his  district. ^"^^  -  The  court  must 
judge  of  the  reasonableness  and  validity  of  any  usage.^"*^ 


been  stowed  below,  as  it  appeared 
that  the  bulkheads  had  been  so 
moved  as  to  give  about  the  same 
amount  of  room,  Jelison  v.  Lee,  3  VV. 
&  M.  (U.  S.  C.  C.)  3G8.  In  a  case 
where  a  master  and  his  vessel  were 
employed  near  Canton,  in  China,  in 
a  service  not  strictly  within  their  or- 
dinary offices,  and  not,  originally,  in 
any  way  contemplated,  the  ship  be- 
ing used,  by  an  arrangement  with 
the  agent  of  the  owner  at  Canton,  for 
twenty-two  months,  as  an  opium 
etore-ship,  and,  according  to  usage, 
a  sum  of  five  dollars  on  each  box  was 
paid  on  the  delivery  of  the  opium, 
which  was  caHed  "  Kumshaw,"  and 
which  was  exclusive  of  the  price  paid 
for  storage,  and  the  "  kumshaws " 
were  paid  to  the  master,  with  the  ac- 
quiescence of  the  agent,  there  having 
been  no  express  agreement  made 
with  respect  to  the  same,  it  was  held, 
in  a  suit  by  tne  owner  of  the  vessel 
against  the  master,  to  recover  the 
"  kumshaws,"  as  a  part  of  the  earn- 
ings of  the  vessel,  that  it  should  be 
left  to  the  jury  to  say  whether,  by 
the  usage  of  the  trade,  the  "  kum- 
shaws "  belonged  to  the  master. 
Willcocks  v.  Phillips,  1  Wall.,  Jr. 
(U.  S.)    47. 

109a  Garfield  v.  Peerless  Motor  Car 
Co.,  (Mass.,  1905),  75  N.  E.  695, 
contra  Golden  Gate  Packing  Co.  v. 
Farmers'  Union,  55  Cal.  COG. 

109b  Thus,  where  there  is  proof  of  an 
agreed  price  or  compensation,  or  of 
a  usage  which  might  affect  it,  or 
from  which  an  agreement  might  be 
inferred,  it  would  not  be  correct  to 
authorize  the  jury  to  judge  of  the  rea- 
sonableness of  the  charges,  irrespec- 
tive of  such  agreement  or  usage ;  but 
the  court  should  determine  whether, 
if  proved  to  the  satisfaction  of  the 
jury,  the  usage  is  reasonable  or  op- 
erative. Codman  v.  Armstrong,  28 
Me.  91.  Exercising  this  power,  it 
has  been  held  that  a  local  custom 
that  ship-owners  shall  be  liable  for 
the  negligence  of  their  agents,  in 
cases     where     the     statute     exempts 


them  from  liability,  is  unreasonable 
and  therefore  invalid.  Walker  v. 
Trans.  &c.  Co.,  3  Wall.  {U.S.)  15.  So, 
too,  that  evidence  of  a  custom  that 
a  master  of  a  vessel  in  a  particular 
port  has  no  authority  to  bind  his 
owners  for  necessaries  furnished  to 
the  vessel,  is  inadmissible,  as  it 
would  contradict  and  control  a  set- 
tled rule  of  maritime  law,  of  uni- 
versal application.  Bliss  v.  Ropes,  9 
Allen  (Mass.),  309.  In  a  New  York 
case  (Lombardo  v.  Case,  45  Barb. 
[N.  Y.]  205),  in  an  action  on  a  con- 
tract to  deliver  certain  railroad 
stock,  it  was  held  that  the  plaintiff 
would  not  be  permitted  to  prove 
that,  by  the  general  cusiom  of  brok- 
ers and  dealers  in  stocks  in  the  city 
of  New  York,  the  words  "  dividends 
or  surplus  dividends,"  in  the  con- 
tract, were  intended  to  mean  divi- 
dends declared  on  the  stock,  whether 
they  had  Ix^en  announced  before  or 
after  the  date  of  the  contract,  pro- 
vided that  on  the  day  the  contract 
was  made  the  stock  was  selling  in 
the  market  '"  dividend  on,"  and  not 
"ex-dividend,"  for  the  reason  that 
eflect  could  not  1m?  given  to  the  cus- 
tom without  making  a  new  contract 
between  the  parties.  It  was  also 
held  in  the  same  case  that  the  words 
"  six  months  from  date "  cannot,  by 
proof  of  any  custom,  be  extended  or 
explained  to  mean  or  include  "  a 
day  or  two  before  date."  In  a  New 
Jersey  case  (Overman  v.  Hoboken 
City  B'k,  30  N.  J.  L.  61),  it  was  held 
that  the  holder  of  a  check  drawn 
upon  a  bank  cannot  avail  himself  of 
a  custom  by  which  banks  belonging 
to  an  association  called  the  clearing 
house,  of  which  the  drawee  was  one, 
are  bound  to  return  checks  presented 
tlirough  the  clearing  house,  and 
which  they  have  no  funds  to  pay, 
upon  the  same  day,  or  before  bank- 
ing hours  of  the  next  day,  under  pen- 
alty of  being  liable  for  the  same,  and 
that  the  fact  that  the  check  was  pre- 
sented through  the  clearing  house  by 
a  bank  which  belonged  to  that  asso- 


150 


KVIUK.NC  K, 


[Cllil)..    J. 


When  a  special  contract  is  jn-uved,  evidence  is  not  admissible  to 
show  a  conHiftinfr  general  custom.""  In  an  action  hy  the  \ni\oe  of 
a  note  given  for  the  purchase-money  of  a  mining  claim  in  Califor- 
nia, evidence  of  a  custom  there  for  the  vendor  to  return  a  note  so 
given  if  the  claim  proved  unprofitahlc,  as  it  did  In  this  case,  is 
not  a  defense  without  proof  that  the  custom  was  known  to  the 
plaintiff,  and  even  if  the  custom  set  up  had  been  well  established, 
it  would  be  invalid  because  unreasonable."^  Evidence  of  a  usage 
with  other  banks  organized  under  the  same  law  to  discount  more 
than  the  legal  rate  of  interest,  upon  the  acquisition  of  business 
paper,  is  not  admissible  in  a  suit  by  a  bank  upon  the  paper  so 
discounted,"^  because  a  usage  in  violation  of  a  statute,  or  which 
furnishes  a  i)retext  or  excuse  for  avoiding  it,  is  bad."'  Special 
usages  are  not  binding,  unless  known  to  the  party  sought  to  be 
charged  thereby."^'' 


oiation,  and  acted  as  the  apent  of  the 
holder,  can  make  no  difference,  as 
cui^toins  in  den><;ation  of  the  common 
law  must  he  strictly  pleaded,  and 
when  well  pleaded,  the  count  must 
snow  a  case  clearly  witliin  the  usaj;e. 
Therefore  an  allefj^aiion  of  a  custom 
that  when  a  check  is  presented  at  tlie 
clearinii  house  to  :i  hank  ajrainst 
whicli  the  clicck  is  ilrawn.  it  shall 
be  returned  within  a  certain  time  if 
not  paid,  does  not  cover  the  case  of 
the  presentment  of  a  check  to  a  bank 
which  is  the  agent  of  the  biink  upon 
which  it  is  drawn.  In  an  action 
against  a  railroad  comjuiny,  by  a 
person  employed  in  repairing  their 
road,  to  recover  for  injuries  received 
while  being  carried  iiy  tiu-m  to  his 
work,  the  defendants  aileged  tluit  the 
plaintiir  was  negligent  in  riding  in 
the  baggage  car.  It  was  helil  that 
evidence  tluit  it  was  the  custom  for 
such  workmen  to  ride  in  the  bag- 
gage car  was  admissible.  O'Donnell 
V.  Allegheny  R.  R.  Co..  50  Penn.  St. 
490.  In  an  action  upon  a  contract  to 
receive  at  a  future  day  a  certain 
number  of  barrels  of  flour  at  a  fixed 
price,  evidence  is  not  admissible  to 
prove  a  custom  that  either  party  to 
such  a  contract  has  a  right  to  de- 
mand a  margin  to  be  put  up,  reason- 
ably sufficient  to  secure  the  perform- 
ance of  the  contract.  Oelrichs  v. 
Ford.  21  Md.  489. 


"'Exchange  Bank  v.  Cookman,  1 
W.  Va.  09;  Detwiler  v.  Green,  ib. 
109. 

'"  Leonard  v.  Peoples.  30  Ga.  61. 

'"Niagara  County  Bank  v.  Baker, 
15  Ohio  St.  OH. 

'"  New  York  Fireman's  Ins.  Co.  v. 
Ely.  2  Cow.  (N.  Y.)  078;  Bank  of 
Utica  v.  Wager,  2  id.  712;  Dunham 
v.  Dey.  IS  .John.    (  N.  Y.)   40. 

ii3a'Thus,  if  the  master  of  a  vessel 
hires  a  berth  for  her  at  a  wharf, 
witliout  notice  of  any  rule  oi  that 
wharf  concerning  the  mode  of  dis- 
charging cargoes  different  from  the 
usage  at  similar  wharves  in  tlie  same 
port,  a  stevedore  whom  he  emj)!oy3 
to  discharge  his  cargo  may  do  so 
according  to  sucli  usage,  and,  if  pre- 
vented by  the  wharfinger,  may  main- 
tain an  action  against  him  for  dam- 
ages. Croucher  v.  Wilder,  98  Mass. 
322.  So  in  an  action  on  a  policy  of 
insurance,  evidence  of  a  local  cus- 
tom amongst  insurers,  not  communi- 
cated to  the  insured,  nor  of  such  no- 
toriety as  to  afford  any  presump- 
tion of  knowledge  on  his  part,  is  not 
admissible.  Hartford  Protective  Ins, 
Co.  V.  Harmer,  2  Ohio  St.  4.52.  But 
in  an  action  on  a  policy  of  insurance, 
evidence  is  competent  to  prove  a 
usage  that  where  there  has  been  a 
verbal  agreement  for  insurance,  and 
the  terms  agreed  upon  and  entered 
in  the  books  of  the  company,  the  con- 


Sec.  41.] 


Parol  Evidence  as  to  Writings. 


157 


But  it  must  be  rememebred  that  where  luords  used  in  a  contract 
have  a  well  defined  meaning,  and  are  not  used  in  a  technical 
■sense,  proof  of  a  meaning  acquired  by  them  in  a  certain  frade  hy 
usage  is  r^ot  admissible  to  put  upon  them  a  different  meaning}^* 
Thus  it  has  been  held,  that  where  a  bond  is  made  payable  in  "cur- 
rent money  of  Philadelphia/'  parol  evidence  is  not  admissible  to 
show  that  it  was  intended  to  be  paid  in  specie,"^  and  so  as  to  the 
meaning  of  the  words  "more  or  less"  in  a  contract,  because,  in  the 
absence  of  any  general  or  special  usage  giving  to  them  a  different 
signification,  the  words  have  a  definite  meaning,  and  oral  proof  is 
not  admissible  to  show  that  the  parties  intended  to  use  them  in  a 
different  sense. 

But  where  a  word  is  used  in  a  contract  which  the  court  is  unable 
to  construe  without  explanation,  it  is  proper  to  admit  evidence  of 
the  peculiar  use  and  meaning  which  the  word  has  acquired  by 
usage  in  a  particular  business  to  which  the  contract  relates,  or  in 
the  locality  in  which  it  is  used  /^^  as,  to  show  what  is  meant  by  the 


tract  for  insuranco  is  considered  as 
valid  for  the  insured.  althoii<j^li  the 
premium  is  not  paid.  Baxter  v. 
Massasoit  Ins.  Co.,  13  Allen  (Mass.), 
320.  The  practical  adoption  and 
use,  for  a  lonor  time,  of  a  particular 
route,  under  a  right  of  way  granted 
by  deed,  without  fixed  and  defined 
limits,  if  acquiesced  in  by  the  grantor, 
operate  to  determine  the  location  of 
the  way  as  ertcctually  as  if  the  same 
had  Ix-en  described  in  the  deed.  Ix'- 
cause  by  acquiescing  in  the  continued 
use  of  such  route  the  owner  of  the 
land  is  treated  as  licensing  that  as 
the  way  granted,  and  the  other  by 
using  it  is  treated  as  electing  to 
adopt  it.  Bannon  v.  Angier,  2  Allen 
(Mass.),  128.  In  an  English  case 
the  defendant  chartered  the  plain- 
tiff's vessel  to  proceed  to  Newcastle- 
on-Tyne,  and  there  be  ready  forth- 
with, "  in  regular  turns  of  loading," 
to  take  on  board  hy  spout  or  keel,  as 
directed,  a  complete  cargo  of  four 
keels  of  coal,  and  the  remainder  coke. 
In  an  action  for  not  loading  the  ves- 
sel with  coke  within  a  reasonable 
time,  it  was  held  that  evidence  was 
admissible  to  explain  the  meaning  of 
the  expression  in  the  charter  party, 
"  in  regular  turns  of  loading,"  by 
showing  that  there   was   a   usage  of 


the  port  of  Newcastle  that  vessels 
should  take  their  cargoes  of  coke  in 
a  certain  regular  order  or  turn,  and 
that  the  question  whether  the  vessel 
was  loaded  within  a  reasonable  time 
ought  not  to  be  decided  without  ref- 
erence to  such  usage,  if  proved. 
I.<^ideman  v.  Schultz,  14  C.  B.  38.  Evi- 
dence of  a  usage  in  a  certain  town 
to  sell  lumber  without  measuring  it 
is  admissible  if  tlie  lumber  to  which 
it  is  souglit  to  Ix'  applied  is  not 
shown  to  have  been  brought  into  the 
town  by  water  and  as  such  required 
by  statute  to  be  measured.  Lee  v. 
Kilbourne,  3  Gray   (Ma.ss.),  594. 

"*  Smith  V.  Battams,  26  L.  J. 
Exch.  32;  Parkinson  v.  Collier, 
Park  on  Ins.  416. 

'"Bond  v.  Hans,  2  Dall  (U.  H.) 
133. 

""Cowles  V.  Garrett,  30  Ala.  341; 
Barron  v.  Placide,  7  La.  An.  229; 
Hart  V.  Hammett,  18  Vt.  127;  Hul- 
bert  V.  Cowen,  37  Barb.  (N.  Y.)  62; 
Ganson  v.  Madigan,  15  Wis.  144; 
Colwell  V.  Lawrence,  24  How.  Pr. 
(N.  Y.)  334;  Smith  v.  Clayton,  29 
N.  J.  L.  357 ;  Locke  v.  Rowell,  47  N. 
H.  46;  Fitch  v.  C-arpenter,  43  Barb. 
(X.  Y.)  35;  Stone  v.  Bradbury,  14 
Me.  185;  :Mvers  v.  Walker,  24  111. 
133;  Williams  v.  Wood,  16  Md.  220; 


158 


Evidence. 


[Chap.  2. 


words  "good  merchantable  shipping  hay,""'  ''good  custom  cow- 
hide boots,"  "*  or  "a  farm,''  or  a  "homestead  farm"  in  a  lease,"* 
or  that  a  right  to  ''deepen  a  ditch"  includes  the  right  to  widen  it,*"** 
or  the  "usual  and  customarv  method  of  engaging  and  paying  a 
fishing  crew,"  to  establish  the  kind  of  voyage  contemplated,'"'  to 
show  what  particular  word  an  abbreviation  was  intended  to  repre- 
sent, "^  to  show  what  is  meant  by  the  word  "team"  in  a  contract,'^ 
or  by  "damages  of  the  river"  in  a  bill  of  lading,'-*  or  the  number 
of  hours  regarded  as  a  "day's  work"  in  a  particular  trade,'"^  or 
that  contracts  of  certain  description,  by  the  custom  of  a  particular 
business,  are  regarded  as  bonds,''®  or  the  meaning  of  tIr'  word 
"currency"  when  used  in  a  note  or  contract,'"^  or  of  the  words  ''on 
margin"  in  a  broker's  contract  relating  to  the  sale  or  purchase  of 
stock.  ^2* 


Wayt  V.  Fairbanks,  1  Bravt.  (Vt.) 
77;  Hite  v.  St<»te.  0  Ycrju'.*  iTenn.) 
357;  Brown  v.  Brooks,  25  IVnn.  St. 
210:  Stewart  v.  Smith,  28  III.  3!)7. 
Tlie  rule  that  o(nirts  are  to  give  con- 
struction to  contracts  is  frequently 
departed  from,  wliere  the  contracts 
relate  to  the  scientific  or  mechanic 
I  arts,  or  contain  words  of  a  tedinical 
or  local  signification.  In  such  cases, 
it  is  common  and  prudent  to  admit 
the  opinions  of  exports,  to  explain 
the  contract.  Ke\niolds  v.  Jourdan,  G 
Cal.  108;  Myers*  V.  Walker.  24  111. 
133;  Galena  Ins.  Co.  v.  Kupfer,  28 
111.  332;  I'rather  v.  Ross.  17  Ind. 
495;  Taylor  v.  Stototinjro,  0  La.  An. 
154;  Broadwell  v.  Broadwell,  1  Gill 
(Md.),  59it;  Williams  v.  Woods,  10 
]\Id.  220;  Smith  v.  Clayton.  29  X.  J. 
L.  357;  Stroud  y.  Fritli,  11  Barb. 
(X.  Y.)  300;  Huiljert  v.  Cawer,  37 
id.  G2 ;  Colwell  v.  Lawrence,  24  How. 
( X.  Y. )  P.  324 ;  Brown  v.  Brooks.  25 
Penn.  St.  210;  Cary  y.  Bright,  58  id. 
70;  Harb  v.  Haniinett,  18  Vt.  127. 
While  parol  evidence,  to  sliow  that 
the  parties  to  an  instrument  placed 
upon  a  certain  word  or  phrase  a 
meaning  controlling  the  whole  eflTect 
of  an  instrument,  is  not  admissible, 
3'et  such  evidence  to  sliow  the  scien- 
tific as  Avell  as  popular  meanings  of 
such  words,  is  admissible.  Hartwell 
V.  Camman,  10  X.  J.  Eq.  128. 

""Fitch  V.  Carpenter,  43  Barb.   (N. 
Y.)   40. 


'"Wait  V.  Fairbanks,  ante. 

""  Locke  y.  Rowell.  47  X.  II.  46. 

'=M  ollins   V.   Driscoll.  34  Conn.   43, 

'-'  Kldridge  v.  Smith,  13  Allen 
(.Mass.).    140. 

'"Hite  V.  State.  9  Yerg.  (Tenn.) 
357. 

'"Ganson  v.  Madigan,  15  Wis.  144, 

'"  Sampson  v.  Gazzam,  0  Port. 
fAla.)    123. 

'"Barnes  y.  Tngalls,  Ala.  193. 
In  tliis  case  among  "  photogra- 
pliers."  See  also  Hinton  v.  Ix)cke,  5 
Hill  (X.  Y. ),  437,  in  the  case  of  car- 
penters, ancl  also  as  to  extra  pay  for 
more  hours'  work. 

'-"Stone   y.   Bradbury,    14   Me.    185. 

'"Pilmer  v.  State  Bank,  10  Iowa, 
321.  But  not  what  is  meant  by 
"  current  funds."  Osgocnl  v.  McCon- 
nell.  32  HI.  74;  Ehle  y.  Chittenango 
Bank.  24  X.  Y.  548;  Marc  v.  Kupper, 
34,  HI.  287. 

"'Hatch  v.  Douglass.  48  Conn. 
116;  40  Am.  Rep.  l.")4.  In  this  case 
the  defendant  wrote  tiie  plaintilT:  "  I 
want  to  buy,  say  one  hiuulred  shares 
of  Union  Pacific  stock  on  margin." 
Cahpenter,  J.,  said:  "What  does 
that  mean?  Those  unacquainted  with 
the  business  would  not  understand 
its  meaning  from  the  language.  It 
is  not  to  be  presumed  that  the  court 
understood  it.  The  plaintiiT  pro- 
duced witnesses  who  were  familiar 
with  the  business,  and  who  knew 
from  experience  and  observation   the 


Sec.  41.]  Parol  Evidence  as  to  Writings.  150 

H.  Usage  in  Particular  Market. 

It  is  settled  by  the  weight  of  authority  that  where  a  principal 
sends  an  order  to  a  broker  engaged  in  an  established  market  or 
trade,  for  a  deal  in  that  trade,  he  confers  authority  upon  the 
broker  to  deal  according  to  any  well-established  usage  in  such, 
market  or  trade,  especially  when  such  usage  is  known  to  the  prin- 
cipal, and  is  fair  in  itself,  and  does  not  charge  in  any  essential 
particular  the  contract  between  the  principal  and  agent,  or  in- 
volves no  departure  from  the  instructions  of  the  principal ;  pro- 
vided the  transaction  for  which  the  broker  is  employed  is  legal  in 
its  character,  and  does  not  violate  any  rule  of  law,  morals  or  public 
policy.  So  the  rules  of  the  cotton  exchange  or  board  of  trade  are 
admissible  in  evidence  to  explain  a  contract  entered  into  in  view 
of  them.^"^  One  dealing  in  a  particular  market,  as  in  the  stock 
yards,  will  be  taken  to  be  bound  by  the  custom  of  business  of  that 
market  whether  he  knows  it  or  not ;  so  his  agent  will  be  taken  to 
have  authority  to  act  according  to  the  usual  course  of  dealings  of 
agents  in  that  market,^^''  as  for  instance,  in  selling  out  stock  car- 
ried for  a  customer  on  his  failure  to  make  good  his  margin,  in  ac- 
cordance with  a  stock  exchange  custom. ^^^  So  a  shipper's  custom  as 
to  the  meaning  of  certain  terms  in  a  bill  of  lading  may  bind  a  party 
"wh.0  misunderstood  it.  Thus  the  expression  "Line  via  Harlem 
River"  may  be  shown  to  refer  to  shipments  from  Western  points 
to  Xew  England  with  right  of  diversion  at  Albany,  Poughkeepsie 
or  New  York  City,  and  not  to  be  limited  to  shii)ments  from  ISFew 
York  City  as  the  consignee  was  held  bound  by  the  general  custom 
of  the  grain  trade.^^^ 

When  a  sale  is-  made  in  a  place  where  a  board  of  trade  exists, 
■which  has  established  certain  rules  relating  to  the  sale  of  certain 
classes  of  property,  as  cotton,  and  a  purchaser  being  informed  of 

meanin<?  attached     to    the  words   to  161  U.  S.  397.  16  S.  Ct.  571:   Hatch, 

prove  their  meanijifj.     The  defendant  v.   Douglass,   48    Conn.     116,  40  Am. 

objected,  but  the   court  admitted  the  Rep.   154. 

e\ndence.  and,  we  tliink,  properly.  ""  Union  S.  Y.  &  T.  Co.  v.  Mai- 
Nelson  V.  Sun  Mutual  Ins.  Co.,  71  X  lorv,  etc.  Co.,  157  111.  554,  41  N.  E. 
Y.  453.  It  was  in  the  nature  of  a  888:  48  Am.  St.  Rep.  341. 
tebhnical  phrase,  the  meaning  of  '^' Van  Dusen-Harrington  Co.  v. 
which  must  be  understood  before  the  Jungeblut,  75  ]\Iinn.  298,  77  N.  W. 
court  could  know  what  the  contract  970:  74  Am.  St.  Rep.  463. 
between  the   parties  really  was."  "- Soper  v.  Tyler   (Conn.,  1904),  58 

'=*Bibb    V.    Allen,     149    U.   S.  481,  A.  699. 
489.  13  S.  Ct.  950;     Hansen  v.  Boyd, 


IGO  Evidence.  [^'luii).  2. 

such  rules  does  not  dissent  or  object  to  them,  but  proceeds  with 
the  contract,  those  rules  become  a  part  of  the  contract  as  much  as 
though  they  had  been  incorjjorated  into  it,  although  they  have  not 
•existed  or  been  acted  upon  long  enough  to  acquire  the  character  of 
a  custom  or  usage  of  the  trade. '^^ 

I.  Usage  must  be  Reasonable  and  Legal. 

In  order  to  be  valid  and  binding,  it  is  necessary  that  a  usage 
should  be  reasonable,  and  it  has  been  held  that  it  is  not  reasonable 
if  an  honest  or  right-minded  man  would  deem  it  unfair  or  un- 
righteous.^^* It  is  very  evident  that  this  is  a  necessary  incident. 
Usages  are  the  result  of  the  experience  of  mankind,  and  have  been 
planned  with  a  view  to  their  convenience.  But  nothing  absolutely 
unreasonable  could  result  from  the  former,  or  tend  to  produce  tlie 
latter.  The  self-will  of  an  individual  might  make  dish<mesty  or 
nonsense  paramount  for  a  day,  but  the  experience  of  men  never 
could  consecrate  what  was  unrighteous,  their  convenience  and  com- 
fort never  could  be  subserverl  by  what  was  unjust  or  unreasonable. 
Where  evidence  of  a  usage  has  been  admitted,  therefore,  evidence 
may  be  given  in  reply,  tending  to  show  that  such  a  supposed  usage 
would  be  unreasonable.^'^ 

"'Leigh  V.   Mobile,  etc.,  R.   R.  Co.,  Haskins   v.    Warren,    115    Mass.   514. 

58  Ala.   105.  In  the  case  last  cited  tlie  court  took 

"*  I'axton  V.  Courtney.  2  F.  <i  F.  occasion  to  f)lace  the  ground  of  in- 
131;  see  Leuckhart  v.  Cooper,  3  validity  upon  the  circumstances  that 
Scott,  512;  3  Bing.  N.  C.  09;  see  also  it  was  an  attempt  hy  usage  to  en- 
Southwestern  Freight,  &c.,  Co.  v.  graft  terms  upon  a  contract  inconsis- 
Stanard,  44  iMo.  71.  tent   with   the   rules  of   common   law, 

"'  Bottomly  v.  Forbes,  5  Bing.  X.  but  it  would  seem  that  the  true 
C.  128.  A  usage  or  custom  that  ground  of  invalidity  is  the  circum- 
inakes  a  negotiable  instrument  trans-  stance  that  such  a  usage  is  against 
ferrable  without  indorsement  is  the  policy  of  the  law.  So  is  a  usage 
against  the  policy  of  the  law,  and  requiring  a  consignee  to  receipt  for 
therefore  invalid.  '  Thus,  a  local  cus-  a  certain  quantity  of  property  before 
torn  among  cotton  dealers  making  a  he  has  had  an  opportunity  to  ascer- 
warehousereceipt  transferable  by  de-  tain  whether  the  quantity  named  in 
livery  without  indorsement,  and'such  the  receipt  has  been  delivered;  Gal- 
mere' transfer  to  pass  the  title  to  the  lup  v.  Ledener,  1  Hun  (N.  Y.),  282. 
cotton  unless  notice  is  given  that  a  and  the  same  is  true  as  to  a  usage 
receipt  has  been  lost  or  got  into  the  for  the  master  of  a  vessel  to  sell  the 
hands  of  some  one  not  entitled  to  cargo  of  a  stranded  vessel  without 
hold  it,  was  held  bad.  Lehman  v.  necessity;  Bryant  v.  Conn.  Ins.  Co., 
Marshall,  47  Ala.  362.  So  a  usage  6  Pick.  (Mass.)  145;  Stillman  v. 
that  no  title  passes  upon  an  ordin-  Hurd,  10  Tex.  107:  or  authorizing  a 
ary  sale  and  delivery — no  lien  being  person  to  charge  for  services  never 
reserved  by  contract  without  pa\^Tlent  rendered,  or  material  never  furn- 
of     the     purchase-money,    is    invalid.  ished;       Whitesides    v.    Meredith,    3 


Sec.  41.] 


Parol  Evidence  as  to  Writings. 


161 


A  custom  will  be  held  unreasonable  where  it  permits  an  agent 


Yeates      (Penn.),     318     Kendall     v, 
Russell,   5    Dana  ( Ky. ) ,    50 ;     or   au- 
thorizing an  agent  to  violate  the  in- 
structions  of   his   principal;      Banks- 
dale   V.    Brown,    1    N.   6i    M.    (S.    C.) 
519;   Catlin  v.  Smith,  24  Vt.  85;  ex- 
empting carriers     from     liability  for 
negligence ;   Schooner  Reeside,  2  Sum. 
(U.   S. )    574;   or   favoring  the  viola- 
tion of  a  statute;  Dunham  v.  Dey,  13 
John.      (N.    Y. )     44;     Supervisors    v. 
Van    Rief,    1    Hun    (N.    Y.),    45;    or 
conferring    a    right    of     action    upon 
contracts   void   under  the  Statute   of 
Frauds,  or  barred  by  the  Statute  of 
Limitations;    Dunham    v.    Gould,    13 
John.  (N.  Y. )  367;  or  to  transfer  set- 
tlement    rights     by     death-bed   dona- 
tions without  a  will;  Westfall  v.  Sin- 
gleton,   1    Wash.    (Va.)    227;    or    for 
factors   to  pledge  the  goods   of  their 
])rineipal ;      Newbold     v.     Wright,     4 
liawle   (Penn.),  195;  or  to  construe  a 
contract   for   articles    by   the   ton,   as 
calling  for  2.200  pounds  for  a  ton  in- 
stead   of    2.000    pounds,    as    fixed    by 
statute;  Evans  v.  Myers,  25  Penn.  St. 
114;  Green  v.  Moffat.  22  Mo.  529.  But 
see  contra  Miller  v.  Stevens,  100  Mass. 
518;    or   one   tiiat   is    in    restraint   of 
trade,  Williams  v.  Gilman.  3  Me.  281 ; 
or  that  deprives  a  person  of  his  prop- 
erty    without     compensation,     as     a 
usage  of  a   bank  not   to  correct  mis- 
takes in  counting  money  unless  it  is 
discovered  l>efore  the  partv  leaves  the 
bank,    Gallatin   v.    Bradford,    1    Bibb 
(Ky. ),  207.   Where  a  custom  for  the 
inspector  of  flour  to  take  to  his  own 
use  the  draft  flour,  drawn  out  to  l>e 
examined,   was  set  up,  it  was  held  that 
it  was   contrary  to  the  policy  of  the 
law;    that  the  statute  providing  cer- 
tain fees   for  inspection,   thereby   im- 
pliedly   forbade   all    other    compensa- 
tion :   that   it  could  not  be  more   an- 
cient  than   the    inspection   laws,   and 
that  they  were  not  old  enough  to  be 
immemorial,    though    beyona    the    ac- 
tual   memory    of    those    then    living; 
that  though  this  custom   had  existed 
under  the  old   laws,   and  the  legisla- 
ture, in  remodeling  them,  had  not  ex- 
pressly   negatived     the     custom,    yet 
that  this  silence  was  not  a  legislative 
recognition    of    it.      And    where    such 
inspector    of    flour    claimed    that  he 
11 


could  not  inspect   by   boring  a    half- 
inch  hole   in  the  head  of  the  barrel, 
and  that  the  custom  allowed   him  to 
use  a  larger  auger;    the   old   law  re- 
quired him  to  inspect  flour  by  a  half- 
inch    hole,    while    tlie    new    code    re- 
quired   all    inspectors    of    flour,    fish, 
butter,  &c.,  to  inspect  by  a  half-inch 
hole    or    in    some    other    satisfactory 
manner,    and    required    tiie    hoops    of 
barrels    offered    for    inspection    to   be 
nailed.       It  was   held  that  the  code 
did  not  change  the  method  of  inspec- 
tion established   by  the  old  law,  and 
that  it  was   no  answer  to   a  manda- 
mus  to   compel    the   inspector   to   in- 
spect a  certain  lot  of  flour  by  a  half- 
inch  hole,    that    he    could    not   so    in- 
spect  it   properly,  and   that   the   cus- 
tom authorized   him  to  use  a    larger 
hole,    as    both    the    answer     and    the 
custom  would   be  in  contravention  of 
tne  statute   under  which   he  held  his 
office.      Dalaplaine    v.    Cranshaw,    15 
Gratt.      (Va.)     457.       So    a     custom 
is     invalid     that    exempts     a     person 
from     liability     where     he     is     made 
liable      by     statute,     or     makes     him 
liable  where   he  is   exempt  therefrom 
by  statute;    Walker   v.   Trans.   Co.,   3 
Wall.    (U.   S.)    150;    or  that   permits 
a  person   to  commit  acts  of  trespass 
upon     others'     property;     Waters     v. 
Lilly,   4   Pick.    (Mass.)    145;    or   per- 
mits an  individual  to  appropriate  to 
his    exclusive    use,    rights    which    be- 
long    equally      to    all      the     public; 
Freary    v.    Cook,    14    Mass.    488;    or 
whicu  jx^rmits  a  person  to  take  any- 
thing from  another's   land,  Perley  v. 
Langley,  7   X.  H.  233.     A  custom  to 
take  fish,   or   to  take  sand  from   an- 
other to  make  mortar   in  alieno-solo, 
is  void.     Waters  v.  Lilly,  ante;  Lup- 
kin  V.  Haskell,  3  Pick.    (Mass.)    356; 
Littlefield  v.  Maxwell,  31  Me.  134,  or 
to  take  another's  property;      Wadley 
V.   Davis,   63   Barb.    ( N.   Y. )    500;    or 
that  permits  an   intermediate  carrier 
to   deduct  from  back   freight  carried, 
any     deficiency      in      the     cargo     as 
shown  by  a  comparison  of  the  bill  of 
lading  with   the   measurement  of   the 
carrier    receiving    it;    Strong    v.    G'd 
Trunk   R.   R.   Co.,    15   Mich.    206;    or 
which   continues    the     liability    of   a 


102 


Evidence. 


[Chap.  ?. 


to  deal  with  the  property  of  the  principal  as  his  own,"*  or  neglig- 
ently,'" or  to  chargx*  an  arhitray  commission   for  services/^  or 


carrier  after  his  liability  is  dis- 
charged by  tlie  general  law;  Keed  v. 
Rieliardson,  98  Mass.  210;  or  whieh 
permits  an  agent  to  warrant  the 
quality  of  goods  sold  by  him.  al- 
though not  authorized  to  do  so  by  his 
principal;  Dodd  v.  Farlow.  11  Allen 
(Mass.),  42G;  or  to  ascertain  the 
quantity  by  measurement,  where  the 
articles  are  sold  by  tlie  dozen,  hun- 
dred or  thousand,  instead  of  by 
count;  Sweeney  v.  Tliomason,  9  Lea 
(Tenn.),  3r)9 ;  42  Am.  Kep.  37G. 
There  may  be  some  doubt  in  the  ac- 
curacy of  tliis  doctrine,  and  an  ex- 
amination of  the  case  will  show  that 
really  there  was  no  proof  of  such  a 
usage  as  was  claimed,  and  tliere  was 
direct  prof)f  that  the  defendant  never 
heard  of  the  usage,  and  from  the  cir- 
cumstances there  was  no  ground  for 
a  presumption  that  he  knew  of  it. 
The  contract  was  lor  brick  by  the 
thousand  "  in  the  wall,"  and  the 
usage  claimed,  was  to  ascertain  tlie 
nundjer  by  measurement,  instead  of 
bv  count.  '  In  Sniitli  v.  Wilson.  .3  B. 
&  Ad.  728,  it  was  held  that  tlie  word 
"  thousand,  used  in  a  lease  in  ref- 
erence to  rabbits,  might  be  shown  to 
mean  twelve  hundred.  See  also  Mil- 
ler V.  Stevens,  100  Mass.  515; 
and  Heald  v.  Cooper,  8  Mo.  32, 
all  of  which  are  opposed  to  Sweeney 
V.  Thompson  supra.  See  also  Mer- 
rick v.  McNulty.  26  Mich.  374, 
where  it  was  held  proper  to  ad- 
mit proof  of  a  usage  to  reject  frac- 
tions of  a  foot  in  measurement,  and 
Brooks  v.  Brooks,  25  Penn.  St.  210, 
where  it  was  proof  of  a  usage  that 
where  luml>er  is  sold  by  the  "  thou- 
sand feet,"  lineal  measure  is  intend- 
ed, and  Soutier  v.  Kellerman,  18  Mo. 
509,  where  evidence  of  a  usage  was 
admitted  to  show  that  tico  packs  of 
shingles  make  1.000:  or  any  custom 
or  usage  that  originates  in.  or  is 
continued  by  oppression  or  fraud,  or 
is  contrary  to  the  policy  of  the  laws, 
morality  and  religion,  is  void,  and 
cannot  he  set  up  either  to  protect 
rights  acquired  under,  or  to  defeat 
rights  acquired  in  opposition  to 
them.  Holmes  v.  Johnson,  42  Penn. 
St.  159. 


"*  A  custom  is  to  be  considered  un- 
reasonable if  it  be  opposed  to  the- 
policy  of  the  law,  as  where  it  tends  to 
unsettle  settled  rules  of  law  estab- 
lished for  tlie  protection  of  the  rights 
of  the  parties.  So  a  local  custom  of 
insurance  agents  that  on  closing  the- 
agency  they  should  cancel  and  take 
up  all  policies  paid  for  if  they  see  fit 
on  the  theory  that  the  business  they 
bad  worked  up  and  secured  during 
their  agency  belonged  to  them  per- 
sonally is  invalid.  Merchants'  In- 
surance Co.  of  Newark  v.  Prince,  50' 
Minn.  53,  36  Am.  St.  Rep.  626;  52 
X.  W.  131.  So  a  drummer  cannot 
jirove  a  custom  to  indnrse  checks, 
made  payable  to  his  jirincipal  in  pay- 
ment of  goods,  in  the  aiisence  of  ex- 
press authoritv.  Jackson  v.  Nation- 
al Bank  of  ^IcMinnville,  92  Tenn. 
154,  20  S.  \V.  81(2;  36  Am.  St.  Rep. 
81.  A  custom  for  a  color  mixer  em- 
ployed by  a  carpet  manufacturer  to 
keep  as  his  exclusive  property  title 
to  the  various  shades  of  colors  de- 
vised by  him  for  use  in  the  manufac- 
ture of  cariiets  in  liis  em])ioyer's  mill 
is  unreasonable  and  void.  Dempsey 
V.  Dobson,  184  Pa.  State,  588,  39  A. 
493;  63  Am.  St.  Rep.  809.  Evidence 
of  a  local  custom  by  factors  engaged 
in  the  produce  business  of  making 
weekly  settlements  on  a  basis  of  bills 
payable  by  and  to  them  both  as  fac- 
tors and  principals  is  not  binding 
upon  the  principal  as  it  is  a  custom 
to  permit  an  agent  to  appropriate 
his  prinoiiial's  property  to  the  pay- 
ment of  his  own  debt  which  is  con- 
trary to  well  established  principles 
of  law.  Baxter  v.  Sherman,  73 
Minn.  434,  76  N.  W.  211;  72  Am.  St. 
Rep.   631. 

'"  A  custom  of  bankers  to  surren- 
der an  obligation  for  the  payment  of 
money  to  the  obligor  upon  the  re- 
ceipt of  a  check  given  for  its  pay- 
ment is  unreasonable  and  cannot  be 
invoked  by  an  agent  as  a  justifica- 
tion for  his  course  in  dealing  with  an 
obligation  belonging  to  his  principal,. 
National  Bank  of  Commerce  v.  Amer- 
ican Exchange  Bank,  151  Mo.  320,  52. 
S.  \V.  265;   74  Am.  St.  Rep.  527. 

'"  A    custom    in   order   to   be   valid 


Sec.  41.]  Pakol  EvideiNCE  as  to  Writings.  163 

where  it  in  any  other  way  eontraveves  the  substantive  law,  as  by 
giving  one  a  right  to  take  from,"^  or  dump  on  real  property  of  an- 
other."*^ 

J.  Usage  as  a  Means  for  ascertaining  the  Meaning  of  Words  and 
Phrases. 

While,  generally,  words  are  used  in  contracts  in  their  ordinary 
sense,  yet  it  is  a  matter  of  common  knowledge  that  in  a  particular 
trade  or  business,  words  having  a  well  understood  meaning  in  or- 
dinary transactions  have  acquired  a  technical  sense  entirely  dif- 
ferent from  their  ordinary  signification,  so  that  if  in  that  class 
of  contracts  the  words  were  to  be  given  their  ordinary  interpreta- 
tion, the  intention  of  the  parties  would  be  wholly  subverted.  So, 
too,  there  is  a  class  of  words  which  are  purely  local  or  technical 
which  are  used  in  a  particular  locality  or  science  or  trade,  and  very 
often  the  same  words  which  have  a  common  and  universal  mean- 
ing, also  acquire  a  local  or  technical  signiticance,  and  in  either 
case  evidence  of  usage  is  admissible  to  explain  the  local,  technical 
or  peculiar  meaning  in  the  trade  or  business  to  which  the  contract 
relates,  provided  sufficient  is  proved  to  raise  a  presumption  that  the 
parties  intended  to  use  the  words  in  their  technical  or  peculiar 
sense,  or  the  fact  can  be  inferred  from  reading  the  contract  itself. 
It  may  be  stated,  as  a  general  rule,  that  oral  evidence  is  always 
admitted  to  show  the  sense  in  which,  according  to  the  custom  of 
merchants,   a  mercantile  contract  is  to  be  understood,'"  and  in 

must  be  reasonable,  and  so  a  custom  the  land  of  another  is  immaterial  as 

which  gives  a   real  estate  broker  five  it  is  not  a  lawful  custom,  being  one  to 

per    cent,    of    the    purchase    price    of  take  from   land   of  anothei".     Such   a 

land    for    assisting    in    its    sale    irre-  right   can   be   available   only   by   pre- 

spective    of    tlie    amount,    value    or  scription.      Beach    v.    Morgan,   67    N. 

character   of   the  services  rendered  is  H.  529,  41   A.  349;   08  Am.  St.  Rep. 

-unreasonable    and    void.      Penland    v.  G92. 

Ingle    (N.    C,    190.)),   50    S.    E.    850.  "» A    custom    of    coal    operators    to 

This  case  is  hardly  law,  in  most  juris-  dump   slack  on  their  laiul   in   such   a 

dictions,  see   Cook   v.   Welch,   9  Allen  way  that  it  may  wash  upon  the  land 

(Mass.)   350.  of  another  is  no  defense  to  an  action 

"»  Evidence  of  a  local  custom  as  to  by  one  injured  by  such  a  practice  as 

the  rio-hts  of  a  prior  appropriator  of  it  is  in  violation  of  the  land-owner's 

runnino-  water   contrary   to  the   com-  common    law    right.       Columbus,  etc. 

mon  law  is  held  inadmissible  in  Kan-  C.  &  I.  Co.  v.  Tucker,  48  Ohio  State, 

sas.     Clark  v.  Allaman   (Kan.,  1905),  41,  26  N.   E.   630;    29   Am.   St.   Rep. 

80  Pac.  571;  contra,  Isaacs  v.  Barber,  528. 

10  Wash.  124.  38  P.  871;  45  Am.  St.  '"  Wigglesworth      v.      Dallison,     1 

Rep.    772.      The   custom   to   fish   in   a  Smith's  L.  C.  n. 
stream  not  navigable  flowing  through 


164 


Evidence. 


[Hiap.  2. 


such  cases  it  is  unobjectionable  to  ask  a  witness  whether  there  is 
any  generalb'  understood  meaning  of  certain  words  among  per- 
sons engaged  in  the  particular  trade  or  business  under  considera- 
tion,"" and  indeed  it  would  seem  that  such  a  question  must  be 
put  to  the  witness  before  he  is  asked  what  lie  understands  bv  the 
•written  contract  to  which  it  is  meant  to  apply  the  usage."^  A 
question  as  to  the  meaning  of  a  certain  phrase  in  a  certain  business 
is  inadmissible  without  proof  that  the  phrase  had  a  detinite  trade 


meaning."*     Thus    the    words    "fur/'""  "freight, 


»n46    u 


weeks,"* 


"days,"""  "thousand,""'  "level,"''''  "inhabitant,"'''  "roots,"'^^ 
"building,"''^  and  many  otlicr  words  which  it  would  not  be  profit- 
able to  emimerate  have  been  interpreted  by  extrinsic  evidence, 
although  prima  facia  they  presented  no  ambiguity,  and  their  pe- 
culiar meaning  when  found  in  connection  with  the  subject-matter 
of  the  transaction  has  been  fixed  by  parol  testimony  of  the  sense 
in  which  they  are  uaually  understood  when  employed  in  cases  sim- 
ilar to  that  under  investigation. 


'*-  Rol)ortson  v.  Jackson,  2  C.  B. 
412. 

•"Curtis  V.   Pack,   l.i  \V.  R.   2:50. 

'"('liase  V.  .Xiiisworth,  1H.5  Mich, 
im,  !»7  N.  W.  404. 

'"  Aster  V.  L'liion  Ins.  Co.,  7  Cow. 
(N.  Y.)    202. 

""  Pciscli  V.  Dickson.  1  Mas.  ( U. 
S.)  11:  Lewis  v.  Marshall,  7  M.  & 
G.  729. 

'"Grant  v.  Maddox.  IG  L.  J.  N.  S. 
E.xch.  227. 

'"Cochran  v.   Retberv,  3  Esp.   121 

"» Smitli  V.  Wilson.  3*  B.  &  Ad.  728 

""Clavton  V.  Gregson,  5  Ad.  &  El. 
302. 

"'Rex  V.  Mashiter,  0  Ad.  &  El. 
153. 

'*'Coit  V.  Commercial  Ins.  Co.,  7 
John.   (X.  Y.)   385. 

'"  Livingston  v.  Ten  Broeck.  10  id. 
14.  A  contract  of  hiring  may  be 
qualified  by  proof  of  customary  holi- 
days; Rex  V.  Stoke-upon-Trent,  5  Q. 
li.  303;  a  sack  of  hops  at  100s.  may 
be  explained  to  mean  £5  per  cict.; 
Spicer  v.  Cooper.  1  (j.  B.  424;  a  con- 
tract for  the  sale  of  cider  may  be  ex- 
plained, by  local  usage,  to  mean  ap- 
]>le  juice  before  it  has  been  made  into 
(ider  in  its  usual  form.  Studdy  v. 
Sanders,  5  B.  &  C.  028.  So  parol  evi- 
dence has  been  admitted  to  prove  the 


meaning  of  the  word  "privilege"  in 
y  contract  between  ship-owner  and 
captain:  Birch  v.  Depuyster,  4 
Camp.  38.5;  of  the  meaning  of  "mess 
pork"  in  a  contract  of  sale:  Powell 
V.  Horton,  2  N.  C.  (WIS;  of  tiie  words 
"  across  the  coiintrv"  in  a  wager  on  a 
race:  Evans  v.  Pratt.  3  M.  &  G.  7.59; 
of  the  meaning  of  the  word  "  bale." 
and  the  quantity  usually  contained 
therein,  in  contracts  for  the  sale  of 
articles  bv  the  bale;  Gorrissen  v. 
Perrin.  2  *C.  B.  N.  S.  081;  Taylor  v. 
Priggs,  2  C.  &  P.  52.5,  and,  in  a  New 
Jersey  case,  vSmith  v.  Clayton,  29  N. 
J.  L.  357,  a  lease  of  premises  con- 
tained a  provision  that  "should  the 
s;.id  A.  sell  the  last-mentioned  lot  at 
any  time  after  the  said  C.  has  plant- 
ed the  same,  he  shall  have  the  privi- 
lege of  sowing  grain  on  the  same.  The 
lessor  having  sold  the  land  after  C. 
had  planted  the  land,  he  sowed  oats 
on  the  corn  ground  the  succeeding 
spring,  and  the  question  was  wheth- 
er he  was  not  restricted  to  the  sow- 
ing of  winter  grain.  The  court  held 
that  evidence  of  the  meaning  of  the 
word  "/yraiH."  as  used  in  common  par- 
lance, was  not  admissiijle.  but  that  it 
was  the  duty  of  the  court  to  deter- 
mine its  meaning.  But  that  parol 
evidence   of  the   meaning  of   a   word 


Sec.  41.] 


Pakol  Evidence  as  to  Writings. 


165 


Technical  terms  used  in  a  building  contract  may  be  explained 
by  parol/'"'^  The  expression  "square  3000  pine  saw  logs"  may  be 
explained  to  the  court  in  view  of  local  custom  and  meaning. ^^* 
Evidence  is  admissible  to  show  that  the  word  "noon"  in  a  fire  in- 


that  is  ambiguous  or  made  so  by  evi- 
dence, may  be  shown.  See  Hart  v. 
Hammett,  18  Vt.  127;  Patch  v.  Ins. 
Co.,  44  Vt.  481;  Collonder  v.  Dins- 
more,  55  N.  Y.  204;  Collins  v.  Dris- 
coll,  34  Conn.  43 ;   Averv  v.   Stewart, 

2  Conn.  69;  p:aton  v.  Smith,  20  Pick. 
(Mass.)  150;  Walls  v.  Bailey,  40  N. 
Y.  464;  Taylor  v.  Sotolingo,  6  La. 
An.  154;  Galena  Ins.  Co.  v.  Kupfer, 
28  111.  332;  Drake  v.  Gorce,  22  Ala. 
409;  Hooper  v.  R.  R.  Co.,  27  Wis. 
81  ;  Soutier  v.  Keller  man,  18  Mo. 
50!) ;  Johnson  v.  Ins.  Co.,  39  Wis.  87 ; 
Fitch  V.  Carpenter,  43  Barb.  ( N.  Y.) 
50;  Wait  v.  Fairbanks,  Gray  (Vt.), 
77;  Stewart  v.  Smith.  28  111.  397; 
Jenny  Lind  Co.  v.  Bower,  1 1  Cal. 
194;  Revnoulds  v.  Jourdan,  6  Cal. 
108;  Deiit  V.  Steamship  Co.,  49  N. 
Y.  320;  Schnitzer  v.  Print  Works, 
114  Mass.  123;  Page  v.  Cole,  120 
Mass.  37;  Howard  v.  Ins.  Co.,  109 
Mass.  387;  Murray  v.  Hatch,  6  Mass. 
465.  So  usage  has  been  admitted  to 
show  what  was  meant  by  the  word 
"team"  (Granson  v.  Madigan,  15 
Wis.  144)  ;  to  show  wiiat  was  meant 
by  the  words  "  all  faults,"  in  a  con- 
tract where  certain  property  was 
sold  "  with  all  faults,"  and  generally 
where  it  is  shown  that  a  word  has 
acquired  a  -special  or  techincal  mean- 
ing in  a  certain  trade,  it  may  be 
shown,  because  it  is  presumed  that 
every  person  conducting  such  trade 
uses  the  language  of  the  trade,  and 
makes  his  contracts  in  corformity 
with  the  sense  in  which  sucli  lan- 
guage is  therein  employed.  Whitney 
V.  Boardman,  18  Mass.  44;  Carter  v. 
Coal  Co.,  77  Penn.  St.  286;  Meighan 
V.  Bank,  25  id.  288.  And  the  same 
rule  prevails  where  words  are  used 
in  a  peculiar  sense  in  a  certain  dis- 
trict or  locality.     Pope  v.  Niekerson, 

3  Story  (U.  S.),  465;  Trimble  v. 
Vignier,  1  Bing.  (N.  C.)  151;  De  La 
Viga  V.  Vianna,  1  Br.  Ad.  284;  De 
Wolfe  V.  Johnson,  lO  Wheat  (U.  S.) 
367 :  Clayton  v.  Greyson,  5  Ad.  & 
El.  502 ;  Aben  v.  Carson,  62  Mo.  207. 
The  usage  of  a  trade  is  admissible  to 


fix  the  exact  liability  of  the  parties 
in  cases  where  the  contract  is  silent 
in  that  respect,  and  the  law  has  fixed 
no  definite  standard.  Thus,  in  a  con- 
tract by  which  A.  agrees  to  work  for 
B.  ten  days,  at  $2.50  a  day,  the  con- 
tract seems  definite  enougli ;  but  A. 
has  really  worked  120  hours,  and  the 
question  is,  has  he  worked  more  or 
less  than  ten  days?  If  he  has  worked 
viore  than  that  number  of  days,  he  is 
entitled  to  additional  pay  in  the  pro- 
portion that  the  excess  bears  to  the 
price  per  day;  if  less,  then  B.  is  en- 
titled to  a  proportionate  deduction, 
I  he  law  has  fixed  no  definite  stand- 
ard, therefore  usage  is  the  only  in. 
fetrumentality  that  can  be  brought  in 
to  solve  the  (piestion,  and  the  courts 
admit  it.  Hinton  v.  Locke,  5  Hill 
(X.  Y.),437.  So  to  show  what  is 
meant  by  the  words  "weeks," 
"  months,"  etc.,  in  a  certain  class  of 
contracts.  Grant  v.  Maddox,  15 
Moll.  ,37;  Jolly  v.Y'oung,  1  £sp.  186. 
bo,  too,  where  certain  work,  as  "plas- 
tering" a  house,  or  "  laying  a  cellar 
wall,"  etc.,  is  to  be  done  at  so  much 
per  square  yard,  evidence  of  the 
usage  of  plasterers,  in  tlie  locality 
where  the  contract  was  made,  has 
been  held  admissible  to  determine 
whether,  in  ascertaining  the  quan- 
*?*>■'  tlie  whole  sides  of  the  house 
should  be  measured  as  solid  or 
whether  allowances  should  be  niade 
for  openings  of  windows  and  doors. 
Tlie  courts  justly  hold  that  contracts 
of  this  character  are  ambiguous  to 
the  extent  that  evidence  of  the  usa^e 
of  the  trade  is  admissible  to  asce'i-- 
tain  the  true  method  of  measurement 
and  the  number  of  yards,  etc..  that 
should  be  paid  for,  provided  the 
usage  is  not  unreasonable.  Walls  v 
Bailey,  49  N.  Y.  467;  Ford  v.  Tirrell' 
9  Gray  (Mass.),  401;  Lowe  v.  Leh- 
man, 15  Ohio  St.  179. 

'"Cannon  v.  Hunt   (Ga.),  42  S.  E. 

""Hinote  v.  Brigman,  44  Fla,  589. 
33  So.  303. 


16G 


Evidence. 


[Chap.  2. 


suranec  policy  according  to  a  general  local  custom  referred  to 
twelve  o'clock  mid-day  standard  time  ratlier  than  twelve  o'clock 
*'siin  time."  The  custom  here  was  a  general  custom  not  confined 
to  anv  }>articular  part  of  the  community.*''^  Where  a  memorair- 
dum  for  the  sale  of  goods  relied  upon  to  take  a  transaction  out  of 
the  statute  of  frauds  speaks  of  the  goods  as  "2000  lbs,  F.  C." 
parol  evidence  is  admissible  to  show  that  the  letters  F.  C.  are  tech- 
nical abbreviations  used  in  the  wool  trade  to  designate  a  certain 
kind  of  wool.^" 

But  a  certain  deed  covering  "mineral  and  ores"  cannot  be  ex- 
plained by  evidence  that  the  parties  intended  to  cover  only  iron  ore 
and  that  the  word  minerals  was  understoo<i  in  the  vicinity  to  .' 
mean  iron  ore  where  a  settled  and  recognized  usage  to  this  etfect  ! 
is  not  proved.'^  A  description  of  land  in  a  townsliip  "E"  X  W*'^  ' 
is  insufficient  as  not  being  in  common  language  and  evidence  is  in- 
admissible of  the  local  custom  to  descriln.'  property  in  this  way  and 
of  the  nieaning  of  the  description  even  though  the  usage  claimed 
is  a  general  usage  throughout  the  State  among  those  dealing  in  real 
estate.'^*  It  may  be  stated  as  a  general  rule,  that  ichere  a  word 
or  phrase  used  in  a  contract  is  susccpliljlc  of  two  or  more  yncan- 
ings,  extrinsic  evidence  is  admissihle  to  ascertain  in  irhicli  soise 
it  icns  emptoycd  hi/  the  j)arties,  and  if  a  usage  exists  by  which  the 
words,  in  the  trade  to  which  the  contract  relates,  have  acquired  a 
definite  meaning,  that  is  regarded  as  the  real  exponent  of  the  true 
intention  of  the  parties.^**' 


"^  Rochester  German  Ins.  Co.  v. 
Peaslee  Caull)ert  Co.  (Ky.,  1905),  87 
S.  W.  111.). 

'"  New  England,  etc.  Co.  v.  Stand- 
ard, etc.  Co.,  1G5  Mass.  328,  43  N.  E. 
112;  52  Am.  St.  Rep.  51G. 

"^Armstrong  v.  Lake  Champlain 
Granite  Co.,  147  N.  Y.  495,  42  N.  E. 
186;  49  Am.  St.  Rep.  083. 

153  Power  V.  Bowdlc.  3  N.  D.  107, 
54  N.  \V.  404;  44  Am.  St.  Rep.  511. 

""  Bottoinlcy  v.  Forbes.  5  Bing.  ( X. 
C.)  121;  Journu  v.  Bordieu.  Park  on 
Ins.  245 ;  Mason  v.  Skurry.  id.  245 ; 
Mackenzie  v.  Dunlop,  3  Macg.  (S. 
C.)  26;  Buckle  v.  Knook,  2  L.  R. 
Exchq.  125.  And  in  the  same  man- 
ner the  meaning  of  certain  phrases  is 
ascertained.  Thus  the  phrases  ''  cop- 
pered ship,"  Hazard  v.  N.  E.  Mar- 
ine   Ins.    Co.,    1    Sum.    (U.    S.)    218, 


"  store  fvxtures,"  Wliitmarsh  v.  Con- 
way F.  Ins.  Co.,  10  Gray  (Mass.), 
359.  "  British  weight,"  Goddard  v. 
Bulver,  1  N.  &  M.  (S.  C.)  45;  "im- 
mediate delivery,"  Nelson  v.  Smith, 
30  N.  J.  L.  148':  "a  clear  bill  of  lad- 
ing," Cheny  v.  Holly,  14  Wend.  ( N. 
Y.)  20;  Bari)er  v.  Bruce,  3  Conn.  9; 
"  warranted  to  depart  with  convoy," 
Lethutier's  case,  2  Salk.  443 ;  "  sea 
litter,"  Sleight  v.  Ilartshoriie,  2 
John.  (N.  Y.)  531;  "the  tanning 
business,"  Bargcr  v.  Caldwell,  2  Dana 
(Ky. ),  130;  "in  regular  turns  of 
loading,"  Schultz  v.  Leidman,  146  C. 
B.  38;  "after  arrival"  at  a  certain 
place,  may  be  shown  to  mean  at  a 
place  at  sea,  several  miles  from  cer- 
tain ports,  if  it  be  a  place  of  ordinary 
anchorage.  Lindsay  v.  Jauson,  4  H. 
&   N.  699.     So    where    by  a   charter 


See.  41.] 


Parol  Evidence  as  to  Writings. 


167 


K.  Rule  when  Words  have  well  defined  Meaning. 

Usage  is  not  admissible  to  contradict  or  vary  what  is  plain;'^^^ 
therefore,  if  the  words  employed  in  a  written  contract  or  instru- 
ment have  a  known  legal  meaning,  parol  evidence  that  the  parties 
intended  to  use  them  in  some  different,  though  popular  sense,  will 


party  the  ship-owner   agreed   to   con- 
sign'the  ship  to  A.   B.,  at   Calcutta, 
"  on  the  usual  and  customary  terms," 
a   custom    may     be     proved    for    con- 
signee    to     procure     the     homeward 
freight   on   commission,    Robertson   v. 
Wait,    8    Exch.    299;    but    where    the 
charter  provides    that     the     consign- 
ment   was    to   be   "  free   of    commis- 
sion,"   and    says    nothing    of    usual 
terms,  the   charterer    caimot    set   up 
such   custom   by  oral   evidence   in   an 
action    against     the     ship-owner    for 
not    allowing    the    consignee    to    pro- 
cure  the   homeward   freight.    Phillips 
V.  Briard,  I  H.  &  N.  21.     "  A  full  and 
complete    cargo    of    sugar "     may   be 
explained  to  mean   full  and  complete 
according  to   the   customary  mode  of 
packing    and    loading    sugar    at    the 
port  where   it  is  loaded.   Cuthbert  v. 
C'umming,    11    Exch.   40.5.      "In   turn 
<o  deliver,"  may  be  explained  by  local 
usage.  Leideiiiunn  v.  Sciuiltz,  14  C.  B. 
£18;    Robertson   v.    Jackson,   2    C.    B. 
412.       So  the  custom   of  the  port   as 
to  when  lay  days  commence.     Norden 
Steam    Co.    v.    Dempsey,    1    C.    P.    D. 
654.     "  Fifty  tons  best  palm  oil.  with 
n   fair   allowance   for   inferior   oil,   if 
any,"  may  be  explained   to  be  satis- 
fed  by  the  delivery  of  fifty  tons,  of 
"which    the  greater    part    is   inferior. 
Lucas  V.  Bristow,  E.  B.  &  E.  907  ;  27 
L.  J.,  Q.  B.  364.     A  contract  in  writ- 
ing to  do  stone  and  brickwork  at  the 
rate   of  "  3.s.    per   superficial   yard   of 
work  9   inches   thick,  and   finding  all 
materials,   deducting  all   lights,"  was 
held  not  to  exclude  a  custom  in  the 
trade  to  reduce  all  brickwork  for  the 
purpose  of  measurement  to   9   inches 
in  thickness     Symonds  v.  Floyd.  6  C. 
B.,  N.  S.  691.  So  a  contract  to  do  cer- 
tain work  and   to  deliver   "  a  weekly 
account  of  work  done  "  was  held  not 
inconsistent     with     a     usage     in     the 
building    trade,    that   this   clause    re- 
lated not  to  all  the  work  contracted 


to    be    done,    but   to    that    part   only 
which    was     of     a    particular      kind. 
Myers  v.  Sari,  3  E.  &  E.  306.     Where 
there  was  a  written  contract  for  the 
sale  of  shares  at  a  certain  price,  "  for 
payment   half    in    two,    half    in    four 
months,"   it   was   held,   that   evidence 
was  admissible  that  the  seller  was  by 
usage  not  bound  to  deliver  the  shares 
until    the    appointed     time     for    pay- 
ment unless  the   buyer   chose  to  pay 
for  them  earlier.       Field  v.  Lelean,  6 
H.  &  N.  027,  Ex.  Ch.     The  usage  of 
a  particular  port,  that  the  underwrit- 
ers are  not  liable  for  general  average 
in    respect    of   the   jettison   of   timber 
stowed  on  the  deck,  can  be  annexed  to 
a  policy  making  the  underwriter  lia- 
ble  for   general   average    without    re- 
striction.     Miller   v.   Tetherington,   0 
H.  &  X.  278;   7   H.  (1-   N.  954.     By  a 
bill    of    lading   of   wool,    freight    was 
to  be  paid  "  at  the   rate   of  80s.   per 
ton   of   20   cwt.   gross   weight,   tallow 
and   other    goods,    grain    or    seed,    in 
proportion      as      per     London     Baltic 
printed   rates;"   evidence   was   admit- 
ted to  show  that  by  the  usage  of  the 
trade   this    meant   that   80.s.    per   ton 
of  20  cwt.  of  tallow  was  to  be  taken 
as  the  standard  by  which  the  rate  of 
freight  on  all  other  goods  was  to  be 
measured.       Russian     S.    Navigation 
Trading  Co.  v.  Silva,  13  C.  B.,  N.  S. 
(■•10.       The  question  whether  a  cargo 
'■  for  shipment  in  June  "   was   satisfied 
by  a  cargo  which  was  loaded  half  in 
May   and   half   in   June,   was   held  to 
be  a  question  for  the  jury.     Alexan- 
der V.  Vanderzee,  L.  R..  7'  C.  P.  530. 
So,  on  a  sale  of  goods  to  be  paid  for 
in    from    "  six    to    eight   w'eeks,"    the 
question  of  the  length  of  credit  there- 
by allowed  was   left  to  the  jury,  the 
words,  apart  from  usage,  being  insen- 
sible.    Ashford  v.   Redford,   L.   R.,   9 
C.  P.  20. 

"'  Blackett  v.  Royal  Exchange  Ins. 
Co.,  2  Cr.  &  J.  249. 


168  Evidence.  [Chap.  2. 

rot  be  received,  unless  the  words,  if  interpreted  according  to  their 
strict  legal  acceptation,  are  wholly  insensible  either  to  the  context 
of  to  the  extrinsic  facts.  Thus,  if  a  word  denoting  weight,  meas- 
ure or  number  has  had  a  definite  meaning  attached  to  it  by  the 
legislature,  parties  using  the  word  in  a  contract  will  be  conclu- 
sively presumed  to  have  used  it  in  that  sense,  unless  the  contrary 
clearly  appears  from  some  part  of  the  writing  itself, ^^^  or  from 
proof  of  a  well  established  usage  of  the  trade  or  business  to  which 
the  contract  relates.^*^  But  to  be  admissible  under  such  circum- 
stances, the  usage  must  be  clear,  cogent  and  irresistible.^^^  The 
fact  that  words  of  themselves  are  susceptible  of  an  interpretation 
apparently  consistent  with  the  intention  of  the  parties,  does  not 
exclude  such  proof.  If  the  words  are  shown  to  have  acquired  a 
well-kno-wn  technical  meaning,  that  will  be  taken  to  be  the  sense 
in  which  they  were  used. 

Whatever  the  courts  may  say  as  to  the  introduction  of  evidence 
of  a  usage  that  conflicts  with  the  well  settled  rules  of  law,  it  will 
be  found  in  practice,  and  by  a  careful  examination  of  the  cases, 
that  the  rule  exists  in  theory  rather  than  in  practice,  and  that  the 
rule  is  really  nothing  more  or  less  than  that  evidence  of  a  usage  that 

"'Henrv  v.  Rusk,   1   Dall.    (U.  S.)  Allepre  v.  Maryland  Ins.  Co.,  2  G.  A; 

465;      Frith   v.   Barker.   2   John.    (N.  J.   (Md.)    136. 

Y. )   335 ;  Stower  v.  Whitman,  6  Binn.  Thus,    in    replevin    for    marble    re- 

(Penn.)   417.  tained  by  the  carrier  for  the  costs  of 

"•  Miller     v.     Stevens,     100     Mass.  transportation,    the    question    in    dis- 

518.  pute    was.    whether    marble    in    slab* 

Thus,  in  the  case  last  cited  parol  was     wrought     or     unwroupht.     the 

evidence   was  admitted   to  show  that  charge    for    the    former    being    more 

in  a  contract  for  a  certain  number  of  than   for   the   latter.     Evidence  being- 

"  barrels  "  of  petroleum,   at  so  much  heard,  the   court   instructed   the  jury 

a  gallon,   the   word  "  barrel  "   means  "  that  the  terms  '  wrought '  and  '  un- 

a   vessel    of    a    certain    capacity,    and  wrought,'   as   applied   to   marble,   are 

not   the    statutory   measure    of   quan-  words   of   doubtlul    signification,    and 

tity,   and   that   for   this   purpose  evi-  it  was  competent  for  the  plaintiff  to 

dence  that  petroleum  oil  is  often  sold  show  what  meaning  is  given  to  them 

in   barrels,   and   that  the   barrels   are  by    custom    and    usage;      that     such 

usually  of   such    certain   capacity,   is  custom,  in  order  to  bind  the  defend- 

competent.    as   also   that   tlie   barrels  ant,  need  not  be  universal,  settled  or 

exhibited  by  the  seller  at  the  time  of  uniform   among  dealers  and   carriers, 

his  offer  to  deliver,  some  two  months  If  the  jury  believe  from  the  evidence 

after  the  date  of  the  contract,   were  that    the    generally    prevailing   usage 

of  such  capacity;   also  that  the  pur-  among    manufacturers,     dealers     and 

chaser,  in  all  the  discussions  relating  carriers    is    to    class     and     consider 

to  the  delivery,  did  not  suggest  that  marble  in   slabs  as  unwrought,   then 

the   barrels   were   not   what   the   con-  the  defendant  can  claim  freight  on  it- 

tract  required,   and  was  ready  to  re-  only  as  of  that  class."     It  was  held 

ceive  the  barrels  if  he  had  considered  that     the     jury     were     properly     in- 

the  oil  of  the  requisite  qualitv.  structed.     Bancroft  v.  Peters,  4  Mich. 

^"Spicer   v.    Cooper,    1    Q.   B.    424;  619. 


Sec.  41.]  Parol  Evidence  as  to  Writings.  16d 

conflicts  luith  a  well-settled  rule  of  law  must  he  of  such  a  character 
as  to  afford  irresistible  evidence  that  the  parties  knew  of  and  con- 
tracted in  reference  to  the  usage  rather  than  in  reference  to  the  rules 
of  law,  and  that  where  nothing  more  than  mere  proof  of  a  usage 
exists,  and  the  parties  knowledge  thereof,  it  will  he  presumed  that 
the  parties  contracted  in  reference  to  the  law  rather  than  the 
usage}^'"  A  contrary  rule  would  overturn  a  well-settled  rule  that 
parties  may  waive  the  provisions  of  the  common  law  or  a  statute 
even,  and  contract  in  direct  opposition  thereto,  unless  the  statute 
prohibits  such  a  contract,  or  it  is  malum  in  se  or  opposed  to  the 
policy  of  the  law.  Therefore  there  can  be  no  question  but  that 
in  all  cases  where  the  parties  may  expressly  contract  in  opposition 
to  the  common  law  or  a  statute,  evidence  of  a  usage  may  he  given 
to  show  that  the  parties  contracted  in  reference  to  it  rather  than 
in  reference  to  the  law,  and  it  is  a  question  of  fact  for  the  jury  to 
find  whether  the  parties  did  or  did  not  intend  to  adopt  the  usage 
instead  of  the  law.^^®  Of  course,  limitations  upon  this  rule  exist, 
and  cases  often  arise  in  which  the  courts  will  adjudge  the  usage 
absolutely  void  in  itself,  and  it  may  be  said,  with  absolute  cer- 
tainty, that  if  that  which  is  sought  to  be  incorporated  into  the 
contract  by  usage  would  be  void,  as  an  express  stipulation,  the 
evidence  would  not  be  admissible.  Therefore  a  usage  malum  in 
se  or  7nalum  prohihitum,^^''  or  which  trenches  upon  the  policy  of 
the  law,  as  in  restraint  of  trade,^^^  or  which  is  unreasonable,  un- 
just, oppressive,  or  which  sanctions  dishonesty,  is  clearly  void,^®* 
and  never  could  obtain  recognition  from  the  courts. 

So  when  a  word  has  a  settled  popular  meaning  and  the  contract 
is  unambiguous  on  its  face  it  is  said  that  parol  evidence  of  a  cus- 
tom to  vary  it  is  inadmissible.^'''  Thus  evidence  is  inadmissible 
to  explain  the  meaning  of  the  words  ''at  the  gate"  by  a  local  cus- 
tom or  usage  where  the  words  appear  in  a  contract  for  water,  the 

"'Adams    v.    Pittsburgh    Ins.    Co.,  ^"  Snowden    v.    Warder,    3    Rawle 

7G  Penn.   St.   411;   Jones  v.  Wagner,  (Penn.),   107. 

66   id.   429;   Miller  v.   Stevens,   ante;  "'Williams  v.  Oilman,  3  Me.  281. 

Overman  v.  Hoboken  Bank,  30  N.  J.  "'Gallatin    v.     Bradford,     1    Bibb. 

L.  61.  (Kv.)    209:   Whitcsides   v.   Meredith, 

"°Gorden    v.    Little,    8     S.     &    R.  3   Yeates    (Penn.),   318;      Kendall   v. 

(Penn.)    533;     Halsey    v.    Brown,    3  Russell,  5  Dana   (Ky.),  501. 

Dav   (Conn.),  346;   Snowden  v.  War-  ""Samuel  M.  Lawder  &  Sons  Co.  v. 

def,   3    Rawle    (Penn.),    101;    Renner  Albert  Mackie  Grocery  Co.,  97  Md.  1, 

V.   Bank  of  Columbia.  9   Wheat.    (U.  54  A.  634. 
S. )   581;   Jones  v.  Fales,  4  Mass.  245. 


170  Evidence.  [Chap.  2. 

expressions  of  which  appear  to  be  perfectly  phun.'"'  A  contract 
by  which  a  base  ball  player  is  hired  for  a  definite  period  cannot 
"be  varied  by  evidence  of  a  general  custom  existing  in  the  business 
to  discharge  a  player  on  giving  ten  days'  notice  on  account  of 
inefficiency  in  his  playing.*'"  Where  a  contract  provides  for  the 
delivery  of  coal  or  goods  free  from  any  expense  or  duty  evidence 
is  inadmissible  of  a  custom  at  the  port  of  delivery  that  any  cliange 
of  duty  between  the  date  of  the  contract  and  the  delivery  shall 
operate  to  the  advantage  of  the  purchaser  (under  the  code  provid- 
ing for  evidence  of  usage  only  to  explain  auibiguous  contracts).*'^ 
Where  a  lessee  had  a  right  to  drill  for  "petroleum  oil  or  gas"  evi- 
dence was  excluded  to  show  that  in  such  contracts  the  word  ''jras" 
means  gas  derived  from  a  gas  well  and  not  from  an  oil  well.  The 
•court  remarks  that  that  evidence  contradicts  rather  than  explains 
the  contract.*'^ 

L.  Usage  may  add  Incidents  to  Contracts.     Illustrations. 

The  office  of  a  usage  is  not  confined  to  that  class  of  cases  where 
the  written  instrument  is  expressed  in  ambiguous  or  technical  lan- 
guage, but  is  also  admissible,  in  many  instances,  to  add  incidents 
to  the  contract,  that  is,  to  show  what  tilings  are  customarily  treated 
as  incidental  and  accessorial  to  the  principal  thing,  which  is  the 
subject  of  the  contract,  or  to  which  it  relates,  which  are  not  in- 
consistent therewith.*'"  This  species  of  evidence  is  admitted  upon 
the  principle  of  presumption  that  the  parties  did  not  mean  to  ex- 
press the  whole  of  the  contract  in  writing,  but  made  it  in  refer- 
ence to  the  usage,  and  in  such  cases  the  usage  is  as  much  a  part 
-of  the  contract  as  though  it  had  actually  been  incorporated  there- 
in."® A  good  illustration  of  this  rule  is  to  be  found  in  the  com- 
mercial usage,  by  which  grace  is  allowed  upon  a  note  or  bill  of 

'"  Cummings   v.    Blanchard,    67    N.  Wend.      ( X.     Y. )      386 ;       Leach     v 

H.  268,  36  A.  556,  68  Am.   St.  Rep.  Beardslee.  22   Conn.   404;      Alahamaj 

664.  &c..  R.  R.  Co.  V.  Kidd,  29  Ala.  221. 

'"Baltimore    Base    Ball    Club,    &c.,  "'Palmer    v.    Kane.    5    Wis.    265; 

Co.  V.  Pickett,  78  Md.  375,  28  A.  279,  Bank  of  Columbia   v.  Fitzhugh,   1   H. 

44  Am.  St.  Rep.  304.  &  G.    (Md.)   239:  Harsh  v.  North,  40 

'"Withers  v.  Moore,   140  Cal.  591,  Penn.   St.  241:    United   States  v.   Ar- 

74  Pac.  159.  rendo,  6  Pet.    (U.  S.)    715:   Stultz  v. 

"•Burton    v.    Forest    Oil    Co.,    204  Dicky,  5   Binn.    (Penn.)    287:   Barber 

Penn.  349,  54  A.  206.  v.  Bruce,  3  Conn.  9:  Sewall  v.  Gibbs, 

"'Dixon   V.   Dunham,    13    111.    324;  1    Hall     (X.    Y. ) .    012;      Ludwick    v. 

Thompson     v.     Hamilton,     12     Pick.  Ohio  Ins.  Co.,  5  Ohio,  436 ;   Sampson 

(Mass.)    425;      Cooper   v.    Kane,    19  v.  Gazzam,  6  Port.   (Ala.)   123. 


Sec.  41.]  Parol  Evidence  as  to  Writings.  171 

exchange,  payable  at  a  certain  time.    Thus,  a  note  is  made  payable 
in  sixty  days  from  date,  but  commercial  usage  steps  in  and  post- 
pones the  payment  for  three  days,  making  it  payable  only  in  sixty- 
three  days,  and,  in  cases  where  this  usage  applies,  it  is  so  effective, 
that  a  suit  brought  or  protest  made  before  the  lapse  of  the  sixty- 
three  days  is  entirely  inoperative.     In  these  cases  the  parties  are 
presumed  to  contract  in  reference  to  the  law  as  it  exists  at  the 
time,  and  the  only  differenece  between  taking  that  and  a  usage  is, 
that  'the  latter  is  a  binding  law  on  particular  persons,  places  and 
things ;  and  although  there  are  some  exceptions,  yet,  in  many  cases, 
the  maxim,  Expressum  facit,  cessare  taciturn,  applies  as  well  to 
an  incident,  sought  to  be  annexed  to  a  contract  by  the  general  law, 
as  by  a  special  custom  or  usage.^"     So,  too,  it  may  be  proved  by 
parol  that  it  is  the  custom  of  persons,  employed  in  particular 
trades,  under  a  general  contract  of  hiring,  to  have  certain  holidays 
in  the  year,  and  Sundays  to  themselves.^"'    So  that  a  tenant  by  deed 
is  entitled  to  the  away-going  crops,  although  no  such  right  is  re- 
served in  the  deed,^*^  or  that  an  "  exclusive  agent  "  is  entitled  to 
commissions  on  all  sales  made  by  anyone  in  his  district.'"^ 

This  rule,  however,  as  well  as  in  all  instances  in  which  evidence 
of  usage  is  received,  is  subject  to  the  qualification  that  the  evidence 
must  not  he  inconsistent  U'ith  or  repugnant  to  the  contract;  for 
otherwise  it  would  not  go  to  interpret,  but  to  contradict  what  is 
written.^*''  In  order  to  establish  an  inconsistency  between  the  writ- 
ten agreement  and  the  usage  or  custom,  it  is  not  necesary  that  the 
former  should,  in  express  terms,  exclude  the  latter,  but  if  it  can 
Tae  collected  from  the  whole  instrument,  either  expressly  or  im- 
pliedly, that  the  parties  did  not  mean  to  be  governed  by  the  usage, 
no  evidence  respecting  it  can  be  received.^^^     Prima  facie  every 

"'Cherry  v    Hollv,   14   Wend.    (N.      Doug.  210;  Senior  v.  Armitage   Hatt. 
Y  )    26       Avery  V.  Stewart.  2  Conn.       197;  Hutton  v.  Warren,   1  M.  &  W. 

T'cT^  '46(-'L.wren?e  ?'  MeGr"::  ''L  Garfield  v.  Peerless  Motor  Car 

L    37   Penn     St"^™    Boorm^^^  Co.,     (Mass.,    1905),    75    N.    E^  695, 

Sohnson,  iTwend.   (X.'y.)   566 ;  Wil-  contra  ,^01^-    Gate    Packing    Co.    v. 

cox  .    wood,  9  id.  349^    D^ggeU  v  ^anne-  Ln.on,  o^  Ca  .  606^^^    ^  ^^ 

SosW  V   Wv-S    '  3  Me    156  ;^  Fox  v'.       589  ;   Holding  v.  Pigatt,  7  Bing^  465  ; 

^t^^  P'   '''■'  "^"       ^^£vSo^^3'l^wN£^^   "-" 
-^^'^^t^^pon-Trent,    5    Q.       J;H^^-   ^^    {  ^^  IJ; 

"•  Wigglesworth      v.      Dalhson,      1       <4t). 


172  Evidence.  [Chap.  2. 

contract  is  to  be  understood  as  containing,  in  some  sort,  an  implied 
reference  to  the  general  law ;  but  when  a  state  of  facts  is  made  out^ 
which  rebuts  that  presumption,  and  shows  that  the  parties  intended 
to  adopt  a  particular  usage  as  the  rule  of  interpretation,  the  latter 
will  prevail,  provided  it  is  such  a  usage  as  the  parties  had  a  right 
to  adopt.  But  it  is  obvious,  that  where  the  contract  itself  nmn- 
ifests  an  intention,  either  directly  or  indirectly,  to  exclude  the 
vsage,  no  evidence  of  it  can  be  received,  without  overstepping  the 
limits  of  exposition.  A  custom  or  usage  of  trade  is  only  allowable 
H!?  one  mean  to  arrive  at  the  intention,  never  to  thwart  or  control 
it.  If  the  stipulations  of  a  contract  indicate  an  intention  in  the 
obligor,  variant  from  the  usage,  then  the  stipulations  should  pre- 
vail ;  otherwise,  an  obligation  may  be  imposed  contrary-  to  the  in- 
tention, through  provided  against  by  the  express  terms  of  the  con- 
tract.^*- What  will  be  deemed  such  an  expression  of  intention, 
inconsistent  with  the  usage,  as  to  exclude  the  latter,  is  many  times- 
a  question  of  considerable  difficulty.  The  general  rule  is  clear; 
no  extrinsic  evidence  of  usage  can  be  received  to  vary,  add  to,  or 
contradict  the  plain  sense  of  the  contract,  when  once  properly  as- 
certained.'*^ But  the  application  of  it  depends  so  much  upon  par- 
ticular forms  of  expression,  and  terms  in  the  contract,  which  may 
happen  to  strike  different  minds  in  different  ways,  as  well  as  upon 
various  collateral  and  intrinsic  circumstances,  that  it  is  not  ex- 
traordinay  to  find  learned  judges  disagreeing  somewhat  on  this 
point.  That  disagreement,  as  we  have  seen,  is  most  strikingly 
apparent  in  those  cases  where  usage  has  been  invoked  to  super- 
sede some  rule  of  general  law.  Then  the  presumption  that  the 
parties  contracted  in  reference  to  the  general  law,  must  be  over- 
come, before  the  usage  can  be  applied ;  and  very  slight  indica- 
tions of  intent,  appearing  in  the  instrument,  have  been  seized  upon 
as  corroborating  that  presumption,  to  the  extent  of  excluding  the 
usage  altogether.  There  are  various  usages  of  trade  and  commerce, 
which  have  been  so  often  proved  as  matters  of  fact,  and  have  so 

"'Kendall  v.  Russell,  5  Dana  (Tenn.)  540;  Stoever  v.  Whitman,. 
(Ky.),  501,  502.  See  per  Story,  J.,  G  Binn.  (Penn.)  516;  Turner  v.  Bur- 
in Schooner  Reeside,  2  Sum  (U.  S.)  rows.  5  Wend.  (X.  Y.)  541,  547;  Par- 
570.  sons  V.   Miller,    15    id.   562;   Snowden 

"^  Mumford  V.  Hallett.  1  John.   (N.  v.    Warder.    3    Rawle    (Penn.),    107; 

Y. )     439;   Rankin    v.    The    American  Yeatcs  v.  Pim,  2  Marsh.    (Ky.)    141; 

Ins.  Co.,   1  Hall    (N.  Y.).  619:     The  Blackett  v.  Royal  Exchange  Ins.  Co., 

Schooner    Reeside,    2    Sum.     (U.    S.)  2  Cr.  &  J.  244. 
56;     Turney     v.     Wilson,     7     Yerg. 


Sec.  41.]  Parol  Evidence  as  to  Writings.  173 

far  incorporated  themselves  with  the  general  law,  that  courts  will 
judicially  recognize  them.^^*  But  particular  usages,  such  as  those 
of  which  we  have  been  speaking,  must  be  proved  specially.  x\nd 
the  circumstances  of  the  usage  being  prima  facie  "unreasonable," 
"against  the  general  law,"  ''restricted  within  very  narrow  limits," 
of  comparatively  "recent  origin,"  etc.,  etc.,  always  come  in  to 
enhance  the  difficulty  of  showing  that  the  parties  contracted  in 
reference  to  it,  and  intended  to  make  it  the  law  of  their  case.^*^ 
And  perhaps  this  is  the  sense  in  which  many  cases  are  to  be  un- 
derstood, which  lay  down  the  proposition  that  a  usage,  to  he  oblig- 
atory, mvjst  he  certain,  uniform,  reasonable,  and  sufficiently  an- 
cient to  he  generally  hnown}^^ 

When  the  question  is  of  a  custom  or  usage,  and  it  is  not  known 
to  those  who,  from  their  business  and  connections,  have  the  best 
means  of  knowing  it,  ignorance  of  it  is,  in  some  sense,  positive 
testimony  of  its  non-existence.  Thus,  suppose  the  question  to  be 
as  to  the  existence  of  a  usage  of  trade  in  a  foreign  port,  according 
to  which  the  rights  of  parties  are  to  be  decided,  and  that  there  are 
two  foreign  witnesses,  both  merchants  belonging  to  the  place  and 
dealing  in  the  same  business,  one  of  whom  testifies  in  support  of 
the  usage,  and  the  other  is  ignorant  of  it,  in  such  case  it  seems  the 
usage  cannot  be  said  to  be  proved,  especially  if  other  merchants 
from  the  place  are  in  court  and  not  called  on.^"  So,  too,  the  fact 
that  a  usage  has  been  resisted  by  some,  and  those  insisting  upon  it 
or  others  of  the  same  class  consenting  to  a  qualification  or  aban- 
donment of  it  in  consequence  of  such  resistance,  is  quite  material 
on  the  general  inquiry.^^  There  is  a  distinction  between  inquiring 
of  a  witness  for  the  common  understanding  as  to  the  import  and 
effect  of  a  contract  susceptible  of  a  clear  interpretation,  and  an 
inquiry  merely  as  to  the  custom  or  usage  relating  to  such  contract. 
The  former  would  be  inadmissible,  and  the  latter  is  admissible, 

'"Consequa  v.  Willings,  1  Pet.   (U.  14  Pick.    (Mass.)    143,  4;  Snovvden  v. 

S.   C.   C.)    230;   Snowden   v.    Warder,  Warder,     3     Rawie      (N.   Y.),      105; 

3   Rawle,    105;      Wilcox    v.    Wood.   9  Thomas   v.    O'Hara,    1    R.    Const.    Ct. 

Wend.    (N.    Y.)    349;   United    States  (S.  C.  306;  Furnis  v.  Hone,  8  Wend. 

V.   Horrendo.    6    Pet.     (U.    S.)     715;  (N.   Y.)    266;    Allegre   v.   The  Mary- 

Thomas  v.  O'Hara,   1  Const.  Ct.    (S.  land  Ins.  Co.,  2  G.  &  J.   (Md.)    136. 

C.)   306.  ""  Kendall     v.     Russell,     5     Dana 

"'Gibson  v.  Culver,  17  Wend.    (N.  (Kv.),  501. 

Y.)    307;   Wilcox  V.  Wood,  9  id.  349;  '"  Parrott     v.     Thatcher,     9     Pick. 

Middleton   v.   Heyward,   2   N.    &   Mc-  (Mass.)    420. 

C.    (S.  C.)    9;  Gordon  v.  Little,  8  S.  "*  Kendall  v.  Russell,  ante. 
&   R.   535;  Eager  v.   Atlas   Ins.    Co., 


174 


Evidence.  [Chap.  2. 


if  at  all,  as  a  means  of  interpreting  the  sense  in  which  the  parties 
understood  the  language,  Avhile  the  former  only  shows  the  under- 
standing of  others,  which  is  immaterial,  unless  it  was  also  the  un- 
dersfamling  of  the  parties.^^^ 

M.  Rule  when  Ambiguity  is  Created  by  Parol  Proof. 

There  is  a  class  of  cases,  as  we  have  seen,  where  evidence  of 
usage  is  admissible  to  put  a  construction  upon     a  contract,  in 
which  there  is  no  ambiguity  upon  its  face,  but  where  an  ambiguity 
is  created  by  extrinsic  evidence.     This  results  from  the  circum- 
stance that,  in  the  ever  varying  and  changing  pursuits  of  man- 
kind, new  terms  are  being  devised,  among  mechanics,  manufac- 
turers and  professional  men,  which,  although  they  may  have  a 
well   understood   meaning  in  ordinary  transactions,  yet  have  a 
peculiar  and  entirely  different  meaning  in  the  trade  or  business 
to  which  they  relate,  and  there  can  be  no  rational  objection  to  the 
admission  of  parol  evidence  of  persons  conversant  with  their  tech- 
nical meaning,  to  explain  them,^^'^  and,  although  there  are  a  class 
of  cases  which  hold  that  this  should  not  be  permitted,  where  the 
usage  conllicts  with  a  statutory  dctinition,^^^  yet  the  present  drift 
of  authority  is  the  other  way,  where  the  usage  is  not  malum  pro- 
hibitum.    If  the  usage  is  inconsistent  with  the  contract,  or  ex- 
pressly or  by  necessary  inference  contradicts  it,  it  cannot  be  re- 
ceived in  evidence  to  explain  it,^^^  because  in  such  a  case  the  effect 
of  the  usage  would  be  to  thwart,  rather  than  effectuate  the  inten- 
tion of  the  parties,^^^and  a  usage  is  never  admissible  to  change 
the  legal  relation  of  the  parties,  or  defeat  their  intention.^^* 

'^•Paullv   Lewis,  4  Watts   (Penn.),  '"Evans    v,   Myers,    25    Penn.    St. 

402;   Houphton  v.  Gilbert.  7  C.  &  P.  114:   Green  v.  MofTatt,  22  Mo.   529. 

701      In   this   case   the   question   was  "=  Thompson    v.    Ashton,    14    John, 

as     to     the     meaninp     of     the     word  (X.    Y. )    417:      Robinson    v.    United 

'•cartro,"  in  reference  to  a  ship,  and  States.  13  Wall.   (U.  S.)  3fi5 ;  Dickin- 

whether   it   inchulcd   the   whole  load-  son    v.    Gray,    7   Allen     (ISIass.),   9; 

\n^         The    counsel    was    proceeding  Wetherell    v.    Xeilson,    20    Penn.    St. 

to''  read     from     Entick's     Dictionary  448;      Frith   v.   Barker,  2   John.    (N. 

when  TiNDAL,  C.  J.,  stopped  him  and  Y. )    327 ;    Coxe  v.   Heisley,   19   Penn. 

said :   "  It   is    a    question    of   mercan-  St.  243. 

tile  construction,  vou  had  better  lay  >«  Clark  v.  Raystour,   13   M.  &  W. 

aside  your  dictionary   and   appeal   to  752;    Willtshear   v.   Cottrell,    1    h.   &. 

the  knowledge  of  the   jury.  for.  after  B.  G74.                                           «    t>     u 

all,  the  dictionary  is  not  authority."  '»' Duguid    y.    Edwards,    50     Harb. 

""Sleight    y.    Hartshorn,    2    John.  (N.   Y.)    288;   Lawrence   v.   Maxwell, 

(N.  Y.)    542;  Miller  v.  Steyens,  100  6  Lans.    (N.  Y.)    469:      Woodruff  v. 

Ma'ss    518  National    Bank,    25    Wend.    (N.    Y.) 

674. 


CHAPTEK  III. 

Presumptions. 

Section  42.  In  general,  kinds  of. 

43.  Conclusive  presumptions,  what  are. 

44.  Estoppels  as  presumptions. 

45.  Upon  whom  binding.  m„ui^ 

46.  Estoppel  against  estoppel,  effect  of;  how  may  be  made  arailable. 

47.  Estoppels  in  pais.      Equitable  estoppels. 

48.  Disputable  presumptions  of  law. 

49.  Continuance  of  fact. 

50.  Continuance  of  life.     Effect  of  seven  years'  absence. 

51.  Survivorship  in  common  disaster. 

52.  Sanity  and  suicide. 

53.  Ships  not  heard  from. 

54.  Accounts. 

55.  Agency. 

56.  Carriers,  negligence,  etc. 

57.  Character. 

58.  Fraud,  undue  influence  or  illegality. 

59.  Alteration  of  instruments. 

60.  Damages. 

61.  Identity  of  name. 

62.  Abandonment.  .  i      +  4.^ 

63.  Presumption  arising  from  possession  of  real  estate. 

64.  Presumption  of  lost  giant. 

65.  Validity  of  olhcial  acts.  • 

66.  Jurisdiction  of  courts. 

67.  Regularity  of    appointment  of  officers. 

68.  Official  sales. 

69.  Pavment. 

70.  Title   to   property    presumed  from  possession. 

71.  Miscellaneous  presumptions. 

Sec.  42.  In  general.     Kinds  of.^ 

Presumptions  are  divided  into  two  classes,  presumptions  of  lavf 
and  premmptions  of  fact  Presumptions  of  law  are  said  to  con- 
sist of  those  rules  which,  in  certain  cases,  either  forbid  or  dis- 
pense with  any  ulterior  inquiry,  and  are  founded  upon  either  the 
laws  of  natu/e  or  the  experienced  course  of  human  conduct  and 
affairs,  and  the  connection  usually  found  to  exist  between  certain 
things,  and  are  not  peculiar  to  the  law,  but  are  shared  m  common 

>  See  Thaver,  Prelim.  Treatise,  pp.319-352. 

(175) 


17G  Evidence.  [Chap.  3 

-with  other  sciences.  Thus  the  presumption  of  a  malicious  intent 
to  kill,  from  the  deliberate  use  of  deadly  weapons,  and  the  pre- 
sumption of  aquatic  habits  in  an  animal  found  with  webbed  feet, 
belong  to  the  same  philosophy,  differing  only  in  the  instance,  and 
not  in  the  principle,  of  its  application.  The  one  fact  being  proved 
or  ascertained,  the  other,  its  uniform  concomitant,  is  universally 
and  safely  presumed,  and  it  is  this  uniformly  experienced  con- 
nection which  leads  to  its  recognition  by  the  law,  without  other 
proof;  the  force  of  the  presumption  being  strong  or  weak  in  pro- 
portion to  the  universality  of  its  experience.  This  class  of  pre- 
sumptions arc  divided  into  two  classes,  conclusive  and  disputable. 

A  presumption  cannot  be  based  ujmju  a  presumption  if  there  is 
no.  open  and  visible  connection  out  of  the  facts  upon  which  the 
first  presumption  arises  and  the  facts  sought  to  be  established  by 
the  dependent  presumption.  So  it  cannot  ho  argiu^l  that  from 
certain  circumstances  it  should  Ix"  iiresuiuctl  that  a  deceased  party 
lifted  a  certain  heavy  box  and  that  it  also  should  be  presumed  that 
the  lifting  of  the  box  caused  the  injury  for  which  suit  is  brought." 

The  law  does  not  indulge  contradictory  presumptions  in  respect 
to  the  same  subject-matter  at  the  same  time.  So  when  it  is  shown 
that  a  decedent  had  custody  of  his  will  or  ready  access  to  it, 
shortly  before  his  death  and  the  will  could  not  be  found  after  his 
death,  a  presumption  of  fact  arises  that  he  has  destroyed  it  amino 
revocandi.  But  where  an  action  is  brought  under  a  statute  to  set 
aside  a  will  duly  admitted  to  probate  as  a  copy  of  a  lost  will,  the 
burden  is  then  upon  the  plaintiff  under  the  statute  to  show  that  the 
will  was  destroyed  with  intention  to  revoke  it.^ 

Sec.  43.  Conclusive  Presumptions,  what  are. 

Conclusive,  or,  as  they  are  sometimes  called,  imperative  or  al> 
solute  presumptions  of  law  are  rules  determining  the  quantity  of 
evidence  requisite  to  support  any  particular  averment  u-liich  is  not 
permitted  to  he  overcome  hy  any  proof  that  the  fact  is  otherwise. 
They  consist  chiefly  of  those  cases  in  which  the  long-experienced 

*  Globe   Accident    Insurance    Co.    v.       v.  ^^itchell.  .3.5  Penn.  St.  440:  United 
Ckrisch,  1G3  111.  625.  45  N.  E.  .56.3.  ,54       States  v.   Ross,  96  U.  S.  2S1. 
Am.  St.  Rep.  486.  See,  also,  Douglass  '  Hutson   v.   Hartley    (Ohio,    1905); 

74  N.  E.  197. 


Sec.  43.]  Presumptions.  177 

connection  before  alluded  to  lias  been  found  so  general  and  uni- 
form as  to  render  it  expedient  for  the  common  good  that  this  con- 
nection should  be  taken  to  be  inseparable  and  universal,  and  they 
have  been  taken  by  common  consent,  from  motives  of  public 
policy,  for  the  sake  of  greater  certainty  and  the  promotion  of 
peace  and  quiet  in  the  community;  and  for  this  reason  all  cor- 
roborative proof  is  dispensed  with  and  all  opposition  forbidden.^ 
Belonging  to  this  class  of  presumptions  are  those  arising  under 
statutes,  as  of  payment,  under  the  Statute  of  Limitations,  after 
the  lapse  of  the  statutory  period ;  or  of  a  grant,  after  the  requisite 
user,  of  a  right  or  possession  of  lands,  etc.  But  by  far  the  larger 
class  of  this  species  of  presumptions  arise  under  the  common  law ; 
as,  that  every  person  above  the  age  of  fourteen  years  is  acquainted 
with  the  lawf  also  that  every  sane  person  is  conclusively  pre- 
sumed to  contemplate  the  natural  and  probable  consequences  of  his 
acts^  and  this  rule  prevails  both  in  criminaP  and  in  civil  eases.* 
So  also  conclusive  presumptions  are  raised  that  the  records  of 
courts  have  been  correctly  made  f  that  a  party  to  the  record  was 
interested  in  the  suit  f  that  all  the  facts  essential  to  sustain  a  ver- 
<lict  were  found,  although  not  stated  in  the  record.''  So,  too, 
after  twenty  years  it  will  be  presumed  in  favor  of  all  judicial  tri- 
bunals that  all  persons  concerned  had  due  notice  of  its  proceed- 
ings.^ So,  also,  it  is  conclusively  presumed  that  a  principal  is 
possessed  of  knowledge  of  all  facts  relating  to  a  transaction  which 
his  agent  acquired  while  engaged  in  it  for  the  principal.^  So, 
too,  the  law  conclusively  presumes  in  favor  of  legitimacv,^''  unless 

'Taylor  on  Ev.  64,  65.  Harris  v.  Goodv^-yn,  2  M.  &  G.  405; 

=  1  Hale,  42;   Rex.  v.  Esop,  7  C.  &  Spieres  v.  Parker^  1  T.  R.  141;  Davis 

P.  456.  V.  Black,  1  Q.  B.  911. 

'Rex.   V.   Hunt.    1    Moo.    C.   C.   93;  'Brown    v.    Wood,    17    Mass.    68; 

Rex  V.  Dixon,  3  M.  &  S.   15;   Rex  v.  Ferrer's  Case,  6  Coke,  7. 

Jones,  9  C.  &  P.  260.  »  Fairfield    Savings   Bank   v.   Chase, 

*  Hazen     v.     L\TidonviIle     National  72   Me.    226;      Wiley   v.    Knight    27 

Bank.  70  Vt.  54.3',  41  A.  1046.  67  Am.  Ala.  336. 

St.  Rep.  680;  Haine  v.  Wilson.  9  B.  '""All  children  begotten  while 
&  C.  643;  Baylis  v.  Lawrence.  11  Ad.  their  parents  are  living  together  as 
&  El.  925 ;  Pontifex  v.  Bignold,  3  M.  man  and  wife  are  presumed  to  be 
&  G.  63;  Tapp  v.  Lee,  3  B.  &  P.  371;  legitimate,  and  this  presumption  can- 
Foster  V.  Charles.  6   Bing.  396.  not  be  rebutted  by  showing  that  the 

°  Reed  v.  Jackson,  1  East,  355.  wife    was   guilty   of   adultery   during 

'Stein  v.  Bowman,  13  Pet.   (U.  S.)  the   period   of  gestation."        Town   of 

309.  Canaan  v.   Averv,   72    N.   H.   591,   58 

'  Jackson  v.  Pecked,  1  M.  &  S.  237 ;  A.  509. 

12 


178  Evidence.  [Chap.  5 

it  is  showTi  that  the  hu.-baiul  auil  wife  diil  nut  cohabit,  or  tliat  he 
was  impotent ;"  and  the  j)roof  of  non-access  or  impotency  must 
be  irresistible,  even  though  the  parties  are  living  apart,*'  or  the 
woman  is  living  in  notorious  adultery."  But  while  the  parties  are 
divorced  a  jnensa  ct  ihoro,  children  born  during  separation  are 
presumed  to  be  illegitinnUe,"  So,  too,  an  infant  under  the  age  of 
seven  years  is  conclusively  presumed  to  hi-  inraj)abk'  of  committing 
a  crime  for  want  of  discretion;''  and  under  fourteen  years,  a  male 
infant  is  presumed,  on  the  ground  of  impotency,  to  be  incapable 
of  committing  ra])e,'*  or  even  of  committing  an  assault  with  intent 
to  commit  a  rape.'^  A  female  under  ten  years  of  age  is  presumed 
to  be  incapable  of  consenting  to  sexual  intercourse."  So,  after  tli© 
lapse  of  thirty  years,  it  will  l)e  presumed  that  executors  and  other 
ofHcers,  selling  lamls  as  such,  observed  all  the  necessary  legal 
formalities."  liut  this  j)resumption  does  not  extend  beyond  the 
intermediate  proceedings.  The  license  to  sell,  as  well  as  the 
olKcial  character,  being  matters  of  record,  should  generally  be 
proved.^"  Nor  does  this  presumption  extend  to  records  and  public 
documents  which  are  supposed  always  to  remain  in  the  custody  of 
certain  othcers  charged  with  their  preservation,  and  which,  there- 
fore, must  be  proved,  or  their  loss  accounted  for  by  sec<»ndary 
evidence;"'  nor  in  cases  of  prescription.^  The  same  principle 
applies  to  the  proof  of  the  execution  of  wills  and  ancient  deeds, 
and  where  these  instruments  are  thirty  years  old  and  free  from 
any  alterations,  they  prove  themselves;  the  bare  production  there- 
of is  sufticient,  as  the  subscribing  witnesses  are  presumed  to  be 
dead  ;  and  the  rule  is  not  changed,  even  though  it  is  shown  that  the 
witnesses  are  living,'^  or  even  actually  in  court;'*  nor,  in  the 
case  of  wills,  by  showing  that  the  testator  died  within  the  thirty 

"Cope   V.    Cope.    1    M.   &    R.    2C>0;  '*  Column    v.    Anderson,    10    Mass. 

Morris  v.  Davis.  3  C.  &  P.  215.  lO.'i ;   Society,   &c.,    v.    Wlieeler.    1    N. 

'-Cope  V.  Cope.  nnte.  H.     31U;     Pejepscot     v.     Ransom,     14 

'Miex  V.  Mansfitld.  1  Q.  B.  444.  Mass.  145. 

'•St.    George    v.     St.    Margaret.    1  ="2   Ersk.  Inst.  78.3. 

Salk.  123.  "  Hathaway      v.      Clark,      5      Pick. 

'M   Hale,  147;   4  Bl.  Com.  23.  (Mass.)    4l)0';   Brunswick  v.   M'Kean, 

"Rex  V.  Jordan.  l>  C.  &   P.   118;    1  4  Me.  508. 

Hale.  030;     Re.\  v.  Groombridge,  7  C.  "Mayor  of  Kingston  v.   Horner,   1 

&  P.  582.  Camp.  215;     Eldredge  v.  Knatt,  1  id. 

"Rex  V.   Phillips,   8   C.   &   P.   73G;  215. 

Rex  V.  Eledrshaw,  3  id.  396.  "  Doe  v.  Burdett,  4  Ad.  &  El.  19. 

'*  1  Rugs,  C.  &  M.  G93.  **  Marsh  v.  Colnett,  2  Esp.  006. 


Sec.  44.]  Presumptions.  170 

years.^^  But  it  must  be  shown  that  the  instrument  comes  from 
such  custody  as,  though  not  strictly  proper  in  point  of  hiw,  is 
sufficient  to  raise  a  reasonable  presumption  of  its  genuineness,^*^ 
and  is  otherwise  free  from  suspicion.^'  The  same  rule  extends  to 
letters,^*  certilicates,^®  receipts,^"  and  all  other  written  documents, 
and  if  the  conditions  before  stated  exist,  neither  the  signature  nor 
handwriting  need  be  proved. ^^  It  is  questionable  whether  this 
rule  applies  to  an  instrument  bearing  the  seal  of  a  court  or  of  a 
corporation,  "  because,"  as  was  said  by  Lord  Tenterden,^^  '^  al- 
though the  witnesses  to  a  private  deed,  or  persons  acquainted  with 
a  private  seal,  may  be  supposed  to  be  dead,  or  not  capable  of  being 
accounted  for  after  such  a  lapse  of  time,  yet  the  seals  of  courts 
and  of  corporations,  being  of  a  permanent  character,  nuiy  be 
proved  by  persons  at  any  distance  of  time  from  the  date  of  the 
instrument  to  which  they  are  affixed." 

Sec.  44.  Estoppels  as  Presumptions. 

So,  too,  estoppels  are  ranked  with  conclusive  presumptions,  and 
are  divided  into  three  closses :  estopi)els  by  deed,  by  record,  and 
in  pais?  Estoppels  by  record  will  be  found  discussed  under  sec- 
tions 222-224,  post.  A  nuin  i^'  said  to  be  estopped  when  he  has 
done  or  permitted  some  act  which  the  i)olicy  of  the  law  will  not 
permit  him  to  gainsay  or  deny  ;  and  although  it  is  sometimes  said 
that  estoppels  are  odious,  yet,  they  are  generally  neither  unjust 
nor  absurd,  but  founded  upon  the  plaine^^t  ])rincij)les  of  equity 
and  morality,*  and  tln-ir  foundation  is  laid  in  the  obligation  which 
every  man  is  under,  to  speak  and  act  according  to  the  triuh  of  the 
case,  and  in  the  policy  of  the  law  to  prevent  the  mischiefs  which 
would  result  from  uncertainty,  confusion  and  want  of  confidence 
in  the  intercourse  of  men  if  they  were  permitted  to  deny  that 
which  they  have  deliberately  and  solemnly  asserted  and  received 
as  true.     But  this  doctrine  is  guarded  with  great  strictness,  and  to 

"  Doe  V.  Woolev,  8  B.  &  C.  22.  *"  Bertie  v.  Beaumont,  2  Price,  308. 

"Meath  v.  Winchester.  3  Bing.   (N.  "Wynne  v.   Tyrwhitt,   4   B.   &    Ad. 

C. )     200;   Doe   V.    Samples,    8    Ad.    &  377. 

El.  151.  "^In  Re.x  v.  Bothwick,  2  B.  &  Ad. 

"Roe  V.  Rawlinps.  7  East,  291.  648. 

"Bere    v.    Ward.    2    Ph.    Ev.    204;  'Co.  Litt.  352a. 

Doe  V.  Buvon.  12  Ad.  &  El.  431.  'Taunton,  J.,  in  Bowman  v.  Tay- 

»Rex  V.'  Rvton,  5  T.  R.  259.  lor,  2  Ad.  &  El.  291. 


180 


Evidence. 


[Chap.  3 


be  operative  must  hv  precise  and  clear  and  certain  to  every  intent,' 
and  mutual/ 


Sec.  45.  Upon  Whom  Binding. 

They  are  only  binding  upon  the  parties  and  their  privies,  and 
can  only  be  taken  advantage  of  by  those  who  are  bound  by  them.' 
Corporations  are  bound  by  them  as  well  as  individuals."  But  it 
does  not  apply  to  the  sovereign,'  although  it  has  been  held  that  a 
State  may  i)e  estopi)ed  by  the  acts  of  its  legislature,*  and  a  resolve 
of  the  legislature,  fixing  the  Iwundaries  of  certain  lands,  has  i)een 
held  sutheient  to  estuj)  the  State  from  denying  them."  And  where 
the  State  has  granted  lands  to  an  alien,  it  has  been  held  to  be 
estopped  by  its  own  deed  from  setting  u\)  the  alienage  of  the 
grantee  in  avoidance  of  its  deed.' 

Sec.   46.  Estoppel   against    Estoppel,    Effect   of;    How   may   be 
made  Available. 

An  estoppel  against  an  estoppel  sets  the  matter  at  large.'  Thus, 
a  defendant  sets  up  a  settlement  as  a  bar  to  an  action  and  the 
plaintiff  disputes  it,  the  plaintiff  is  therefore  estopped  to  assert 


•earner  v.  Jackson,  4  Pet.  (U.  S. ) 
83;  and  not  dependent  upon  doubtful 
inference.  Rich  v.  At  water.  1»>  Conn. 
401);  Uijove  v.  I'rimni.  3  Mo.  r>-2!) ; 
Ballinjr  V. 'Mayor.  :?  Rand.  (Va.)  .^t).3. 
Where  one  Martin  H.  Sullivan  wrote 
letters  descrihinp  hinisell  at  times  as 
"survivinjLj  partner  of  D.  F.  Sullivan" 
the  defendant  by  addn>ssin<i  him  in 
return  as  plain 'Mr.  M.  H.  Sullivan 
does  not  admit  that  M.  H.  Sullivan 
is  the  surviving  partner  of  D.  F.  Sul- 
livan esjxHially  whore  M.  H.  Sullivan 
at  times  sijnied  himself  as  "  successor 
to  "  1).  F.  Sullivan.  There  could  be 
no  claim  of  an  estoppel  until  the 
plaintiff  had  himself  by  his  conduct 
unequivocally  fi.\ed  his  own  status 
and  here  he  left  it  uncertain  whether 
he  was  claimino:  as  successor,  execu- 
tor, or  as  surviving  partner.  Sulli- 
van V.  Louisville  &  N.  R.  Co..  128 
Ala.  77,  30  So.  528. 

*  Lansing  v.  Montgomery.  2  .John. 
(N.  Y. )  382;  Schumann  v.  Garratt. 
16  Cal.  100;  Long^vell  v.  Bentley,  3 
Grant   (Penn.)   Cas.  177. 


'Griggs  V.  Smith.  12  N.  J.  L.  22; 
Griffen  v.  Richardson,  11  Ired.  ( N. 
C.)  L.  4.39;  Langer  v.  Fitton,  1 
Rawle  (Penn.).  141;  Williams  v. 
Chandler,  2.">  Tex.  4;  Worcester  v. 
Green.  2  Pick.  (Mass.)  42.5.  That 
is.  privies  in  blood,  by  estate  and  in 
law.  Co.  Litt.  3.')2« ;  Measure  v. 
Noble.  11  III.  531:  Miles  v.  Miles.  8 
W.  &  S.  (Penn.)  13;);  Deevy  v.  Cray, 
5  Wall.  (  U.  S.)  7!>5:  Nutwell  v. 
Tongue.  22  Md.  419:  I^ngston  v. 
McKinne.  2  Murph.    ( N.   C. )    <J7. 

=  Selma,  &c..  R.  R.  Co.  v.  Tipton,  5 
Ala.  787:  Hale  v.  Union  M.  F.  Ins. 
Co.,  32  X.  H.  295;  Little  Rock  & 
Napoleon  R.  R.  Co.  v.  Little  Rock  & 
Miss.  R.  R.  Co.,  36  Ark.  003. 

'  Tavlor  v.  Shuford,  4  Hawkes 
(N.  C'.),  116;  Wallace  v.  Maxwell,  10 
Ired.  (N.  C.)  L.  110;  Johnson  v. 
United  States.  5  Mas.    ( U.  S. )   .525. 

*  Enfield  v.  Permit.  5  N.  II.  280. 

'Com.  V.   Pejepscot.  10  Mass.   1.55. 

•Com.  V.  Audre,  3  Pick.  (Mass.) 
324. 

'  Carpenter  v.  Thompson,   3   N.   H. 


See.  47.] 


Peesumptions. 


181 


that  the  previous  account  between  the  parties  was  accepted,  and 
the  defendant  is  estopped  from  asserting  that  it  was  not,  with  the 
result  that  the  two  estoppels  destroy  each  other  and  set  the  matter 
at  large. ^  If  CAadenee  is  offered  of  facts  which  the  party  is 
estopped  from  proving,  and  no  objection  is  made,  the  estoppel  is 
waived.^  A  party  relying  on  an  estoppel  must  plead  it  if  he  has  an 
opportunity  to  do  so,  otherwise  it  may  be  given  in  evidence  under 
the  general  issue.*  And  if  a  party  neglects  to  take  advantage  of  an 
estoppel  by  plea  or  demurrer  when  he  has  an  opportunity  to  do  so, 
the  estoppel  is  deemed  to  be  waived." 


Sec.  47.  Estoppels  in  pais.    Equitable  Estoppels. 

Estoppels  in.  pais  are  those  which  are  not  included  in  those  by 
deed  or  record,  whether  they  appear  upon  the  face  of  a  written  in- 
strument, or  result  from  some  act  or  omission  of  the  party,  in- 
ducing another  party  to  act  upon  the  faith  of  such  acts  or  omissions 
to  act,  so  as  injuriously  to  affect  his  previous  position.^  Thus, 
if  the  maker  of  a  note  declares  it  to  be  "  good  "  to  a  person  who 
is  about  to  purchase  it,  or  stands  by  in  silence  when  it  is  about  to 
be  transferred  to  a  third  person,  he  is  thereby  estopped  from  set- 
ting up  any  defense  to  the  note  which  existed  at  that  time,  of 
which  he  was,  or  ought  to  have  been,  cognizant.^     So,  an  estoppel 


204;  Daiisen  v.  Jolinson,  13  N.  J.  L. 
204. 

=  Chretien  v.  Giron  (La.,  190.")),  38 
So.  8S1. 

'  Hanson  v.  Bueknev,  4  Dana 
(Ky. ).  251. 

*  Howard  v.  Mitchell,  14  Mass. 
241;  Lord  v.  Bigelow,  8  Vt.  461; 
Isaacs  V.  Clark.  12  Vt.  002;  McMair 
V.  OTallow,  8  Mo.  188;  VVoodhaven 
V.  Williams,  3  Dev.   (N.  C.)   L.  508. 

''Brinsmaid  v.  Mage,  9  Vt.  31; 
Burdet  v.  Burdet,  2  A.  &  R.  Mar. 
(Ky.)  143;  Keel  v.  Ogden,  3  Dana 
(Ky.).   103. 

'Roe  V.  Jerome,  18  Conn.  138; 
White  V.  Langdon.  30  Vt.  599;   Allen 

V  Winston,  1  Rand.  (Va.)  G5;  Laski 
V.  Goodman.  18  La.  An.  294;   Bowen 

V  Buck.  28  Vt.  308;  Preston  v. 
Mann,  25  Conn.  118;  Garrison  v. 
Garrison.  29  X.  J.  L.  153;  Forsyth  v. 
Day,  46  Me.  176;  Wvman  v.  Per- 
kins, 39  X.  H.  218;     Cook  v.  Finkler, 


9  Mich.  131;  Rignev  v.  Smith,  39 
Barb.  (X.  Y. )  383 :  Cocke  v.  Kuyken- 
dall,  41  Miss.  65;  Reigard  v.  McXiel, 
38  111.  400;  Brown  v.  Wright,  17 
Ark.  9;  Crout  v.  De  Wolf,  1  R.  I. 
393. 

MVatson  v.  McLaren,  19  Wend. 
(X.  Y.)  557;  Crout  v.  De  Wolf,  I  R. 
L  393 ;  Cloud  V.  Whiting,  38  Ala.  57 ; 
Drake  v.  Foster,  28  id.  649;  Power 
V.  Pinkerton,  1  E.  D.  S.  (X.  Y.  C. 
P. )  30 ;  Preston  v.  Mann,  25  Conn. 
118;  Vanderpool  v.  Blake,  28  Ind. 
130;  Bank  of  Genesee  v.  Patchin 
Bank,  13  X.  Y.  .309;  Smith  v.  Stone, 
17  B.  Mon.  (Ky.)  168;  Reed  v.  Van- 
cleeve,  27  N.  J.  L.  352;  Bliss  v.  Rol- 
lins, 6  Vt.  529.  So,  if  a  note  is  made 
payable  at  a  particular  bank,  the 
maker  is  thereby  estopped  from  de- 
nying the  existence  of  sucli  bank. 
Hall  V.  Harris,  16  Ind.  180;  Depeur 
V.  Bank  of  Limestone,  1  ,J.  J.  Mar. 
(Ky. )    378.     So,    if    he   gives   a   note 


182  EviDiJNCE.  [Chap.  3 

as  to  a  boundary  line  may  be  proved  by  parol.^     So  it  has  been 
held  that  a  mortgagor,  who  represents  to  a  person  who  is  about  to 
take  an  assignment  of  it,  that  it  is  "  all  right,"  is  estopped  thereby 
from  setting  up  the  defense  of  usury,  or  denying  the  amount 
stated  to  be  due  thereon,  in  its  inception.*     So  where  property  is 
by  the  owner  put  into  the  hands  of  a  third  person  to  be  sold  as  his 
own,  the  real  owner  is  estopped  from  setting  up  his  ownership 
thereof  to  the  prejudice  of  a  purchaser  from  such  third  person, 
and,  it  seems,  against  a  creditor  of  such  third  person  who  has  at- 
tached it  upon  the  faith  of  a  representation  to  him,  by  such  third 
person,  that  the  property  was  his.^     But  it  must  be  remembered 
-that  no  estoppel  in  relation  to  real  estate  can  be  created  by  verbal 
contracts  or  admissions.®    Enough  has  been  said  to  illustrate  gen- 
erally  what  amounts  to  an  estoppel  in  j^ais,  and  to  show  what  ' 
must  be  proved  to  establish  such  an  estoppel,  to  wit:  1st.   That 
the  party  sought  to  be  estopped  made  the  representation  or  ad- 
mission, or  did  the  act,  or  omitted  to  do  it,  upon  which  the  estoppel 
is  based.     2d.  That  the  party  setting  up  the  estoppel  was  induced 
to  act,  or  to  omit  to  act,'  upon  the  faith  of  such  matters,'^  and, 
either  that  the  party  sought  to  be  estopped  intended  to  mislead  the 
other,  or  ivas  guilty  of  such  culpable  negligence  as  maij  be  re- 
'  garded  as  amounting  to  an  intention  to  mislead} 

So,  too,  it  must  appear  that  the  party  seeking  to  avail  himself 
of  the  estoppel  is  himself  bound  to  the  exercise  of  good  faith,  and 
must  show  that  he  acted  promptly,  influenced  by  a  belief  in  the 
truth  of  the  matter  represented,  and  will  be  prejudiced  if  the 
representations  are  allowed  to  be  disputed.  The  act  must  be  the 
immediate  or  proximate  result  of  the  representation,  as,  unless  in- 
duced by  the  belief  therein  to  alter  his  position,  the  opposite  party 
cannot  be  concluded   from  averring  a  different  state  of  affairs. 

payable  to  a  particular  corporation,  Wharf,  26  Me.  384;  Hamlin  v.  Ham- 
he'  is  estopped  from  denying  that  lin,  19  id.  141.  ,  ^^  ^  o^ 
there  is  such  a  corporation.  Con-  '  Helser  y.  ]\IcGrath,  52  Penn.  St. 
gregational  Society  v.  Perry,  6  N.  H.  531;  Austin  y.  Thompson,  45  X.  H. 
\q^                          ''  113;      Morton    y.    Hodgdon,    32    Me. 

'Thompson  v.  Borg,  90  Minn.  209.  127;      Morrison   y.    Weayer,    10    Ind. 

95  N   W   896  344;  Windle  y.  County,  21  id.  248. 

*Cary'  y.    Wheeler,    14    Wis.    281;  « Taylor     y.     Ely,    25     Conn.    250; 

Man  y'Howland,  20  Wis.  282;  Smith  Combs  y.  Cooper,  5  Minn.  2.34:   Mor- 

V   Newton,  38  111.  230.  lison  y.  Weaver,  ante;   Steele  y.  Put- 

"Drew  y.  Kimball,  48  N.  H.  282.  ney,  15  Me.  327. 

"Gerrish   y.    Proprietors    of    Union 


Sec,  48.]  Presumptions.  183 

The  first  act,  after  hearing  the  words  or  witnessing  the  conduct 
upon  which  the  alleged  estoppel  is  founded,  is  the  test  of  the 
party's  belief  in  the  truth  of  the  representation;  and  when  the 
act  evinces  a  disbelief,  no  estoppel  can  thereafter  be  claimed.^  It 
must  also  appear  that  the  person  sought  to  be  estopped  had  legal 
capacity  to  contract ;  consequently  an  infant,  or  married  woman,^*^ 
are  not  at  law  estopped,  except  as  to  matters  relative  to  which  they 
can  make  a  binding  contract.^^  But  a  municipal  corporation  may 
be  estopped  as  an  individual  would  be  to  set  up  the  unconstitu- 
tionality of  a  statute.^^ 

Sec.  48.  Disputable  Presumptions  of  Law. 

Disputable  presumptions,  like  the  former,  are  founded  upon 
the  general  experience  of  mankind  of  a  connection  between  cer- 
tain facts  or  things,  and  the  production  of  certain  results  there- 
from. But,  while  in  the  case  of  the  former,  the  connection  is 
supposed  to  be  invariable,  yet  in  the  latter,  while  the  connection 
is  usually  invariable,  yet,  it  is  not  always  so,  therefore  while,  if 
tliere  is  no  proof  to  the  contrary,  courts  will  act  upon  it,  yet 
it  is  open  to  proof  that  in  a  particular  case,  the  connection  does 
not  exist  and  therefore  the  presumption  fails.  Thus,  in  all 
criminal  cases  because  people  do  not  generally  commit  crimes, 
it  is  presumed  that  a  person  charged  with  a  crime,  is  innocent, 
but,  as  human  experience  has  demonstrated  that  this  is  not  always 
the  case,  proof  is  admissible  to  overcome  the  preumption,  and 
from  this  arises  the  invariable  rule  that  a  person  charged  with  a 
crime,  is  presumed  to  be  innocent  until  proved  to  be  guilty.  So, 
too,  it  is  presumed  that  a  bond,  mortgage  or  specialty  of  any  de- 
scription is  paid,  after  the  lapse  of  twenty  years  from  the  date 
of  its  maturity,  but  this  is  a  mere  presumption  of  fact  which  may 
be  overcome  by  proof  that  payment  thereof  has  not  in  fact  been 
made,  because  experience  demonstrates  that  people  do  not  always 
enforce  their  rights  on  the  one  hand,  or  discharge  their  obligations 
upon  the  other,  within  that  period.  And  generally,  where,  from 
a  given  state  of  facts,  certain  results  usually  ensue,   it  will  be 

» Andrews   v.   Aetna   Life   Ins.   Co.,  III.   194;   32  Am.   Rep.   22,   as  to  the 

85  N.  Y.  334.  rule  in  equity  where  the  acts  amount 

""  Innis  V.  Templeton,  95  Penn.   St.  to  fraud. 
264.  "City  of  Mt.  Vernon  v.   State,  71 

11  See    Patterson    v.    Lawrence,    90  Ohio  St.  428,  73  N.  E.  515. 


184  Evidence.  [Chap.  5- 

presumed  that  they  do  ensue;  but  this  class  of  presumptions  are 
only  prima  facie,  in  other  words,  presumptions  of  fact,  which  may 
always,  if  possible,  be  overcome  by  proof  that  in  the  particular 
case  they  did  not  ensue. 

Sec.  49.  Continuance  of  Fact. 

A  state  of  relations  between  parties  once  proved  to  exist,  is  pre- 
sumed to  continue  until  the  contrary  is  shown  ;^  and  if  these  rela- 
tions are  shown  to  have  existed  under  certain  conditions,  they 
are  presumed  to  exist  under  the  same  conditions.^  Thus,  while 
it  will  not  be  presumed  that  a  woman  is  married  yet,  when  her 
coverture  is  once  established,  it  will  be  presumed  to  continue 
until  the  contrary  is  shown, ^  And  where  one  was  said  to  be  un- 
married in  1862  it  will  be  presumed  he  w^a.s  unmarried  in  1858.* 
So  if  a  person  is  shown  to  have  entered  into  the  service  of  another 
under  a  certain  contract,  it  will  be  presumed  that  all  future 
services  are  continued  under  such  contract,  however  long  con- 
tinued, unless  a  new  contract  is  shown  to  have  been  subsequently 
made,^  and  he  must  sue  upon  the  contract  and  not  upon  a  quantum 
meruit.  Acceptance  of  a  mortgage  subject  to  a  claim  of  a  certain 
bank  "Limited"  imports  that  the  bank  is  a  corporation,  which  fact 
is  presumed  to  continue  until  the  contrary  is  proved.'^ 

So  generally,  where  a  state  of  affairs  or  of  matters  of  fact  are 
shown  once  to  have  existed,  the  presumption  is  that  they  still  ex- 
ist.^ Thus,  if  a  vessel  is  proved  to  have  been  seaworthy  when  a 
policy  attached  thereto,  it  will  be  presumed  that  she  continued 
so  during  the  whole  time  of  the  risk.^  So  if  a  state  of  war  in  a 
certain  country  is  shown  to  have  existed  three  years  ago,  it  will  be 

^Eames  v.    Eames,  41    N.   H.    177;  Patchiii,     5     Cal.     474;      Wallace    v. 

Hood  V.  Hood,  2  Grant's  Cas.  (Penn.)  Floyd.    29    Penn.    St.    184;    Ranck   v. 

229;   Montcromerv  Plank  Road  Co.  v.  Albright.  3G  id.  .307. 

Webb,  27  Ala.  618;   Mullin  v.  Pryor,  "  Xicholson   v.   Patchin,   ante. 

'['>  Mo   307-  People  v.  McLeod,  1  Hill  '  Anglo-Californian-  Bank    v.    Field 

(N   Y  )    377.  (Cal.,  1905).  80  Pac.  1080. 

^Geiston  v.  Hoyt,  1  John.    (N.  Y.)  'Fan  v.  Payne,  40  Vt.  615;   Bell  v. 

Ch    543.  Young,   1  Grant's  Cas.    (Penn.)    175; 

'Erskine  v.  Davis,  25  111.  251.  Brown     v.     Binnham,     28     Me.     38; 

*  Gibson  v.  Brown,  214  111.  330,  73  O'Xiel  v.  New  York,  &c..  Mining  Co., 

N.  E.  578.  3   Nev.    141  ;    Brown   v.   King,    5  Met. 

^Edrington  v.  Leach,  34  Tex.  285;  (Mass.)    173. 

Wood's    Master     and    Servant,     192;  "Wright  v.  Orient,  &c.,  Ins.  Co.,  6 

Vail  V.  Jersey  Little  Falls  Mfg.   Co.,  Bos.    (N.  Y.)   269;   Martin  v.  Fishing 

32  Barb.    (N.  Y.)    564;  Nicholson  v.  Ins.  Co.,  20  Pick.    (Mass.)    389. 


Sec  49.]  Presumptions.  ISS* 

presumed  still  to  exist  ;^°  or  if  a  person  is  proved  to  have  been  in- 
sane at  a  former  period,  it  will  be  presumed  that  he  continues  so/^ 
unless  it  is  shown  that  such  insanity  was  produced  bv  some  violent 
disease/^  So  if  a  decree  in  chancer}^  is  shown  to  have  been  made, 
it  will  be  presumed  that  it  continued  in  force  unless  It  is  shown 
to  have  been  annulled,  reversed  or  set  aside/^  So  where  a  partner- 
ship, agency,  tenancy,  or  other  similar  relation  is  shown  to  have 
once  existed,  it  will  be  presumed  to  continue  until  it  is  proved  to 
have  been  dissolved, ^^  and  it  is  upon  this  principle  that,  where  a 
person  is  shown  to  have  permitted  a  servant  or  mistress  to  order 
goods  upon  his.  credit  upon  several  occasions,  he  will  be  liable  for 
goods  so  ordered  after  the  relation  has  in  fact  been  terminated, 
unless  notice  to  the  tradesman  not  to  furnish  them  upon  his  credit 
has  been  given.^^  So  where  a  certain  custom  was  found  to  have 
existed  in  1689,  it  was  held  that  it  would  be  presumed  that  it  ex- 
isted in  1840.^''  So,  where  an  infant  son  is  shown  to  have  resided 
with  his  parents,  it  will  be  presumed  that  he  continued  uneman- 
cipated,  as  in  the  daj^s  of  his  infancy,  although  he  long  since  ar- 
rived at  manhood,  unless  there  is  some  evidence  to  rebut  this  pre- 
sumption ;"  and  in  an  action  to  cancel  a  deed  alleged  by  the  plain- 
tiff to  have  been  executed  by  him  in  his  minority,  it  was  held  that 
there  was  no  presumption  that  he  had  attained  his,  majority,  and 
tliat  he  must  prove  that  fact.^*  So,  wdiere  a  person  is  shown  to 
have  resided  at  a  certain  place  at  any  time,  it  will  be  pi*esumed 
that  he  continues  to  reside  there  until  the  contrary  is  shown." 

'"Covert  V.  Gray,  34  How.  Pr.    (N.  when    he   committed    it,    but   holding- 

^•)   450.  that  such  a  refusal  is  erroneous  when 

"  Sprague    v.    Duel,    1    Clarke    (N.  the  insanity   is   shown   to   have   been 

Y.),  90;   Ripley  v.   Babcock,   13  Wis.  habitual.        See   State   v.   Wilner,   40 

425;     Litlaw  v.  Litlaw,  54  Penn.  St.  Wis.  304. 

216;      Saxon   v.    Whittaker,    30   Ala.  '=  Hix      v.      Whittemore,     4      Met. 

237:  Breed  v.  Pratt,  18  Pick.  (Mass.)  (Mass.)   545;   Hall  v.  Warren,  9  Ves 

115:   Smitli  v.  Tibbitt,  L.  R.,  1  P.  D.  605;      Walcott  v.   Alleyn,   Milw.   Ex. 

398;   Att'y-Gen'l   v.    Paruthers,  3  Br.  Tr.   69;      Airey  v.   Hill",  2  Add    289- 

C.  C,  443:   Hassord  v.  Smith,  L.  R.,  6  White  v.  Wilson,  13  Ves.  87. 
Eq.  429;    Brimani  v.  Draper,  6  Ec.  &  "Murphy  v.  Dorr,  25  111.  251. 

Mar.  Cas.  421;   Nicholas  v.  Burns,   1  '*  Pickett  v.  Peckham,  L.  R.,  4  Ch. 

Swab.  &  T.  243;   Johnson  v.  Blane,  6  App.  190;     Blandy  v.  De  Burgh,  6  C. 

Ec.  &  Mar.  Cas.  457;   but  see  People  B.  623;     Alderson  v.  Clay,  1  Stookee, 

V.   Smith,  57   Cal.   130,  where  it  was  405;      Clark    v,    Ale.xander,    8    Scott, 

held  in  a  criminal   trial  that  it  was  161 ;   Ryan  v.  Lams,  12   Q.  B.  460. 
proper  for  the  court  to  refuse  to  in-  "Ryan  v.  Lams,  ante. 

struct  the  juiy  that  if  the  defendant  '°  Scales  v.  Key,  11  Ad.  &  EI.  819. 

was  shown   to  liave  been  insane  just  "Reg.  v.  Lilleshall,  7  Q.  B.  158. 

before  the  crime  was  committed,  the  '*  Irvine  v.  Irvine,  5  Minn.  61. 

presumption  was  that  he  was  insane  "  Kilburn      v.      Bennett,      3      Met. 


186  Evidence.  [Chap.  3 

So,  where  it  is  shown  that  a  person's  reputation  for  truth  and 
veracity  was  good  three  years  ago,  it  will  be  presumed  that  it  still 
continues  so.^"  So,  where  property  is  shown  to  have  belonged 
to  a  person  prior  to  his  death,  it  will  be  presumed  to  have  be- 
longed to  him  at  the  time  of  his  death  ;^^  and  generally,  where 
property,  either  real  or  personal,  is  shown  once  to  have  belonged 
to  a  person,  it  will  be  presumed  that  it  continues  to  be  his  until 
the  contrary  is  shown. ^^  The  opinions  of  individuals  once  enter- 
tained and  expressed,  and  the  state  of  their  mind  once  proved  to 
exist,  are  presumed  to  remain  unchanged. ^^ 

Sec.  50.  Continuance  of  Life.     Effect  of  Seven  Years'  Absence. 

A  person  once  shown  to  have  been  living  will  be  presumed  to 
be  still  alive,  in  the  absence  of  evidence  that  he  had  not  been 
heard  from  within  the  last  seven  years.^  But  where  a  person  goes 
abroad,  and  nothing  is  heard  from  him  by  those  w^ho,  if  he  w^as 
living,  would  be  likely  to  hear  from  him,  the  presumption  of  his 
life  ceases  after  seven  years.^  By  the  civil  law  the  legal  pre- 
sumption of  life  ceases  in  one  hundred  years  from  the  date  of 
birth,^  and  such  also  is  the  rule  in  the  Scotch  law  ;^  but  in  this 

(Mass.)    199;      Prather  v.   Palmer,  4  Bradley  v.  Bradley,  4  id.   173;   Flynn 

Ark.    456;      Wilmington   v.    Burling-  v.    Coppee,    12    Allen     (Mass.)     133; 

ton,  4  Pick.    (Mass.)    174;   Randolph  Forsaith    v.    Clark,    21    N.    H.    409; 

V.    Easton,   22    id.    242;      Rixford    v.  Stinchfield  v.   Emerson,   52  Me.   465; 

Miller,  49  Vt.  319.  Norman  v.  Jenkins,  10  Pick.   (Mass.) 

="Lum  V.  State.  11  Tex.  App.  483.  515;   Eagle  v.  Emmett,  4  Bradf.    (N. 

"Hanson    v.     Chatovich,     13     Xev.  Y.    Surr. )    117;   Loring  v.    Steinman, 

395.  1   Met.    (Mass.)    404;     Mansburgh   v. 

"Harrison   v.    Queen   Ins.    Co.,    49  Jackson,   2   X.   J.   L.   229;      Spurr  v. 

Wis.  71.  Trimble,    1    A.    K.    Mar.    (Ky.)    278; 

=^  State    V.    Stinson,    7    Law    Rep.  Stevens   v.    McXamara.    36   Me.    176; 

(Am.)   383.  Tilley  v.  Tilley,  2  Bland   (Md.),  436;- 

'  For  the  history  of  the-  rule  show-  Whiting  v.   Nicholl,  46  111.   230 ;   As- 

ing    its    origin    in    1805    in    Doe    d.  burgh  v.  Saunders,  8  Cal.  62;   Clarke 

George    v.    Jesson,    6    East,    80,    see  v.   Canfield,    15   N.   J.   L.    119.     It  is 

Thayer,  Prelim.  Treatise,  p.  319.     R.  not  necessary  that  the  person  should 

V.  Lum'ley,  L.  R.,  1  C.  C.  196:     Letts  be    sho\\Ti    to    have   gone   out    of   the 

v.   Brooks,   H.  &   D.   Suppt.    (X.   Y.)  country;  it  is  sufficient  if  he  is  shown 

3g_  to  have  been  absent,  unheard  of,  from 

MVhiteside's   Appeal,   23   Penn.   St.  the     particular     Stat«,     seven     years. 

114;   Smith    v.    Knowlton,    11    X.    H.  Xewman  v.   Jenkins,  ante;  Woods  v. 

191:   Crawford    v.    Elliott,    1    Houst.  Woods,  2  Bay   (S..C.),476;   Spurr  v. 

(Del.)    465:      Primm    v.    Stewart,    7  Trimble,       ante;         Wambough       v. 

Tex.   178;   Coper  v.  Thurmond,   1  Ga.  Schenk,  ante. 

538 ;  Brown  v.  Jewett,  18  X.  H.  230 ;  '  Campegius    Tract,    de    Test.    reg. 

Smith   V.    Smith,    5   X.   Y.    Eq.    484;  350. 

Csborn   v.    Allen.    26    X.    J.    L.    388;  '  Hubb  Ev.  of  Succ.   758. 

Burr  V.  Sim,  4  Whart.    (Penn.)   450; 


Sec.  50.] 


Presumptions. 


187 


country  as  well  as  in  England  there  is  no  fixed  time  within  which 
the  presumption  is  allowed  to  prevail,  and  the  fact  that  the  person, 
if  living,  Avould  be  more  than  one  hundred  years  old,  is  not  con- 
clusive.^ The  grantors  in  a  deed  dated  1817  were  presumed  to  be 
dead  in  1900,  merely  because  such  great  age  as  their  continued 
life  would  presuppose  is  contrary  to  human  experience.^  Wliile, 
however,  the  law  raises  a  presumption  of  death  after  an  absence 
of  seven  years,'^  unheard  of,  yet  it  raises  no  presumption  as  to  the 
time  of  death,^  not  even  that  he  died  on  the  last  day  of  the  seven 


"Burney  v.  Ball,  24  Ga.  505; 
Weale  v.  Laever,  Pollex,  67  ;  Napper 
A.  Sutton,  Hutt.  119. 

^Young  V.  Shulenburg,  165  N.  Y. 
?85,  59  N.  E.  135,  80  Am.  St.  Rep. 
730. 

In   one   case,   where   it   was    shown 
that    tlie    person,    when    last    heard 
from,  was  twenty-two  years  old  and 
in  bad  health,  arid  would,  if  then  liv- 
ing,   be    eighty    years    old,    and    al- 
though,   upon    inquiry    at      his    last* 
known    place   of    residence   and    post- 
office     address,     his     name    was     not 
known  at  the  post-office  nor  inserted 
in  the   city   directory,   this   was   held 
not  sufficient  to  raise  a  presumption  of 
his  death.     Matter  of  Hall,   1   Wall., 
Jr.    (U.  S. )    85.     In  an  English  case 
the    deposition    of    a    witness    taken 
sixty  years  before  was  rejected,  there 
being  no  proof  that  a  search  had  been 
made  for  the  witness,  and  no  account 
being  given  of  him,  Benson  v.  Olive, 
2  Str.  920 ;   Manby  v.  Curtis,  1  Price, 
225,  and  in   another  case,  where  the 
term  was  sixty  years  old,  the   court 
took     into    consideration     the    possi- 
bility of  the  termor  still  being  alive. 
Beverley   v.    Beverlev.    2    Vern.    131; 
Doe  V.  Andrews,   10  Q.   B.  314.     But 
in  an  action  of  ejectment,  where  the 
lessor   of   the   plaintiff,    to   prove   his 
title,   put  in   a   settle'ment    130  years 
old,   by   which   it   appeared   that   the 
party  through  whom  he  claimed  had 
four    elder    brothers,    the    jury    wei'e 
instructed  that  they  might   presume, 
not    only    that    these    persons    were 
dead,  but   in   the  absence   of   all   evi- 
dence to  the  contrary,  that  they  died 
unmarried  and   without  issue.        Doe 
V.  Deakin,   3   C.  &  P.  402.     Whether 
the  portion  of  the  doctrine  of  the  last 


case  relating  to  the  presumption  that 
the  persons  died  without  issue  is  cor- 
rect there  may  be  some  doubt,  but  in 
any  event  it  seems  that  such  a  pre- 
sumption will  be  sustained  by  very 
slight  proof,  such  as  failure  to  hear 
of  any  such  issue  upon  due  inquiry, 
or  failure  to  answer  advertisements 
calling  for  heirs,  etc.  Greaves  v. 
Greenwood,  L.  R.,  2  Exch.  D.  287; 
see  Emerson  v.  White,  29  N.  H.  482, 
where  it  was  held  that  there  is  no 
presumption  either  way  as  to  mar- 
riage or  the  birth  of  children  and 
that  a  person  who  asserts  that  a  per- 
son is  dead  without  issue  must  offer 
some  evidence  of  the  fact.  But  if 
the  events  are  remote  slight  evidence 
will  suffice. 

'  Where  a  wife  is  unable  to  discover 
any  trace   of   her   husband   for   seven 
years  after  diligent   search  a  violent 
presumption   of    his   death    is    raised. 
Bard  in  v.  Bardin,  4  S.  D.  305,  56  N. 
W.   1069;  46  Am.  St.  Rep.  791.     See 
discussion  in  Davie  v.   Briggs,   97   U. 
S.  628,  Ruloff  V.  People,  18  N.  Y.  879. 
m'Carter   v.    Camel,    1    Barb.    Ch. 
(N.   Y.)    455.     The  probable  time  of 
death  may  be  inferred  from   the  cir- 
cumstances, but  if  no  sufficient  facts 
are  shown  from  which  to  draw  a  rea- 
sonable inference  that  death  occurred 
before  the   lapse  of   that   period,   the 
person  will,  in   all   legal   proceedings, 
be  treated  as  having  lived  during  the 
whole  of  that  period.     Eagle  v.   Em- 
met,   4    Bradf.     (N.    Y.    Surr.)     117; 
Puckett   V.   State,    1    Sneed    (Tenn.), 
355;    Gorden    v.     Gorden,     2     Houst. 
(Del.)    574;   White  v.  Mann,  26   Me. 
361;    Merritt    v.     Thompson,    1    Hilt. 
(N.  Y.  C.  P.)   550;  Gibbs  v.  Vincent, 
11  Rich.   (S.  C.)   323. 


188 


Evidence. 


[Chap.  3 


years;®  therefore  if  it  became  important  for  a  party  to  establish 
the  precise  time  of  death,  he  must  do  so  by  evidence  and  cannot 
rely  either  npon  the  presumption  of  death  upon  the  one  hand  or 
of  the  continuance  of  life  upon  the  othcr.^^ 

While  the  presumption  of  the  common  law  does  not  attach  to 
the  mere  lapse  of  time  less  than  seven  years,  independent  of  other 
circumstance,  yet,  upon  an  issue  of  life  or  death,  the  jury  may, 
where  the  circumstances  warrant  it,  find  the  fact  of  death  from 
the  lapse  of  a  shorter  period."  Where  a  woman  was  married  again 
wuthin  four  and  one-half  years  after  the  disappearance  of  her 
first  husband  the  presumption  of  the  legality  of  the  marriage 
ceremony  overcomes  the  presumption  of  the  continuance  of  life 
of  the  first'  husband  and  the  marriage  is  presumed  to  be  legal.^^ 
But  evidence  that  a  |3erson  suddenly  disappeared  without  ex- 
planation on  a  certain  day  and  has  never  been  heard  from  since 
and  that  his  relations  in  life  wTre  of  such  a  character  as  to  re- 
fute the  theory  of  abandonment  of  family,  friends,  and  everything 
calculated  to  conduce  to  his  comfort  and  happiness  is  insufficient 


•Xepcan  v.  Knipht,  2  M.  &  W. 
894;  McCarter  v.  Camel,  ante. 

"  In  re  Phene's  Trusts.  L.  R.,  5  Ch. 
App.  139;  Dunn  v.  Snowden,  2  Dr.  & 
Sm.  201;  Lewe's  Trusts.  L.  R.,  11  Eq. 
236;  Lambe  v.  Orton.  29  L.  J.  Ch. 
286;  In  re  Benhani's  Trusts,  37  L. 
J.  Ch.  265 ;  Pennefcather  v.  Ppnne- 
feather,  L.  R.,  6  Eq.  171;  In  re  Peck, 
29  L.  J.  Pr.  &  Mat.  95;  Hickman  v. 
Upsall,  L.  R.,  20  Eq.  136. 

"  Thus,  where  it  appeared  that  a 
brig  liad  sailed  from  Demerara  to 
England,  in  December,  1S28.  and 
touched  Dominica  on  tlie  24th  of  that 
month,  and  had  never  after  been 
heard  of,  Vice-Chancellor  Kxight- 
Bkuce,  after  a  lapse  of  seven  yiars, 
presumed  that  the  vessel  and  crew 
were  lost  before  the  29th  of  January, 
1829,  evidence  being  given  that  the 
average  length  of  a  voyage  from 
Dominica  to  England  was  less  than 
two  months,  and  that  the  West  In- 
dian latitudes  were  subject  to  hurri- 
canes, which  were  so  much  more  pre- 
valent between  the  1st  of  August  and 
the  10th  of  January  that  double 
rates  of  insurance  were  charged  dur-. 
ing  that  period.     Sillick  v.  Booth,  1 


Y.  &  C.  117;  Ommaney  v.  Stillwell, 
23  Beav.  328.  So,  too.  when  it  is 
shown  that  a  person  when  last  heard 
of  was  aged,  infirm  or  ill,  R.  v.  Has- 
borne.  2  Ad.  &  El.  544;  Beasney's 
Trusts,  L.  R..  7  Eq.  498;  or  has  since 
been  exposed  to  great  perils,  such  as 
a  storm  and  probable  sliipwreck, 
Watson  v.  King,  4  Camp.  272;  death 
"may  be  presumed  in  a  less  period. 
Thus,  in  the  case  of  a  missing  ship 
bound  from  Manilla  to  London,  on 
whicli  the  underwriters  had  volun- 
tarily paid  the  amount  insured,  the 
death  of  those  on  board  was  pre- 
sumed by  the  Prerogative  Court,  af- 
ter the  absence  of  only  two  years, 
and  administration  was  granted  ac- 
cordingly; Patterson  v.  Black,  2 
Park's  Ins.  919.'  So,  also,  where  a 
person  takes  passage  on  a  ship  or 
steamer,  and  upon  arrival  at  port  he 
is  not  to  oe  found  upon  the  boat,  the 
boat  not  having  landed  during  the 
voyage,  a  jury  might  with  great  pro- 
priety from  this  fact  presume  the 
person's  death  during  the  voyage. 

'=  Hunter  v.  Hunter,  111  Cal.  261, 
43  P.  756,  52  Am.  St.  Rep.  180  and 
note  p.  185. 


Sec.  50.]  Presumptions.  189 

to  raise  a  presumption  of  death  within  seven  years  of  that  time.^^ 
The  burden  of  proving  the  death  of  a  person  is  upon  him  who  sets 
it  up ;"  and  if  he  relies  upon  the  absence  of  the  person  for  seven 
years  without  being  heard  from,  he  must  establish  both  facts  be- 
fore the  presumption  arises.    Mere  fact  of  absence  is  not  enough ; 
he  must  show  inquiries  made  at  his  last  known  residence  abroad, 
or  if  he  had  none  that  is  known  to  his  friends,  inquiries  made  of 
persons  in  the  place  where  he  was  last  known  to  reside  before  he 
went  abroad,  and  inquiries  among  his  relatives  and  friends  who 
would  be  most  likely  to  hear  from  him  if  living. ^^     Absence,  in 
this-  connection,  means  that  the  person  is  not  at  the  place  of  his 
domicile  and  that  his  actual  residence  is  unknown,  but  removal 
alone  is  not  enough.    So  where  a  person  removes  from  his  domicile 
in  a  State  to  establish  a  home  for  himself  in  another  State  or 
country  at  a  place  well  known  this  is  a  change  of  residence  and 
absence  from  the  last  domicile  is  that  upon  which  the  presumption 
must  be  built.    If  alive  when  last  heard  from  in  his  new  domicile 
the  presumption  is  that  life  continues.^®    A  statute  providing  for 
a  presumption  of  death  where  a  person  absents  himself  from  the 
State  for  seven  years  does  not  apply  to  children  of  tender  years 
having  beon  living  with  their  parents  and  having  no  right  of  free 
locomotion.     So  where  a  family  leaves  a  certain  town  there  is  no 
presumption  after  seven  years  that  the  children  in  it  are  dead 
under  this  statute.^^     The  presumption  of  death  by  absence  from 
home  unheard  of  for 'seven  years  may  be  rebutted  by  evidence 
purely  hearsay  in  character  which  may  be  considered  by  the  jury, 
so  the  general  report  among  the  friends  of  the  absentee  and  those 
who  knew  him  that  he  was  alive  and  in  the  United  States  army 
may  be  testified  to  and  a  witness  may  testify  that  he  had  recently 
conversed  with  a  person  from  another  State  who  informed  the 
witness  that  the  absentee  was  alive  in  that  State.^^    So  the  issuing 
of  letters  of  administration  upon  the  estate  of  a  person  is  prima 
facie  evidence  of  the  person's  death,  as  it  will  be  presumed  that 

^'Mutual     Benefit     Co.'s     Petition,  (N.  Y.)   455;  Clarke  v.  Cummings,  5 

174    Penn.    State    L    34    A.    283,    52  Barb.   (N.  Y.)   339. 
Am.  St.  Rep.  814.  '"  Francis    v.     Francis,      180    Penn. 

"Emerson  v.  White,  29  N.  H.  482 ;  State,    644,    37    A.    120,    57    Am.    St. 

Ashbury  v.  Sanders,  8  Cal.  62 ;  Gilli-  Rep.  668. 

land  V.  Martin,   3   McLean    (U.   S.),  "  Manley  v.  Pattison,  73  Miss.  417, 

490.  19  So.  236,  55  Am.  St.  Rep.  543. 

"McCartee  v.   Camel,   1   Barb.  Ch.  "  Dowd  v.  Watson,  105  N.  C.  476; 

11  S.  E.  589;   18  Am.  St.  Rep.  920. 


190  Evidence.  [Chap.  S 

the  court  issuing  the  letters  did  so  upon  competent  proof  of  that 
fact.^®  Proof  of  absence  without  being  heard  from  for  a  period 
less  than  seven  years,  though  but  a  day,  will  not  be  sufficient.  The 
full  period  must  have  elapsed,  even  though  it  is  shown  that  the 
person  was  in  feeble  health  when  he  left  the  neighborhood,  or  was 
very  aged.^"  But,  while  the  law  raises  the  presumption  of  death 
after  seven  years'  absence  abroad  ( which  means  either  beyond  seas, 
or  out  of  the  State),  without  being  heard  from,  yet,  it  does  not, 
except  in  peculiar  cases,  raise  any  presumption  as  to  the  tiine  of 
death,  but  in  all  legal  proceedings  the  person  will  be  regarded  as 
having  lived  until  the  expiration  of  the  seven  years  ;^^  but  icliere 
a  person  sails  on  a  voyage  at  a  particular  date,  and  the  length  of 
time  which  it  takes  to  make  the  voyage  is  known,  quickest  and 
longest,  it  Avill,  after  the  lapse  of  seven  years  without  tidings  from 
him,  he  presumed  that  he  died  within  the  period  usually  assigned 
for  the  longest  voyage,  and  legal  proceedings  taken  against  or  for 
him  after  that  period  will  be  deemed  invalid, ^^ 

Sec.  51.  Survivorship  in  Common  Disaster. 

By  the  civil  law,  when  two  or  more  relatives  have  perished  by 
the  same  calamity,  as  a  wreck,  battle,  conflagration,  etc.,  in  the 
absence  of  direct  proof  as  to  which  survived,  certain  artificial  pre- 
sumptions are  resorted  to  which  are  based  on  the  probabilities  of 
survivorship  resulting  from  strength,  age  and  sex.  Thus,  in  the 
case  of  a  father  and  son  perishing  by  the  same  shipwreck  or  battle, 
'  by  the  civil  law  it  is  presumed  that  the  son  died  first  if  he  was 
under  the  age  of  puberty ;  but  if  he  was  above  that  age,  it  is  pre- 
sumed that  he  was  the  survivor,  upon  the  principle  that  in  the 
former  case  the  elder  is  generally  the  most  robust,  and  in  the  latter 
the  younger.^  By  the  French  code,  regard  is  had  to  the  ages  of 
fifteen  and  sixty,  presuming  that,  as  between  those  under  that  age 
and  not  over  sixty,  the  latter  survives ;  but  if  one  of  the  parties  is 
under  fifteen,  and  the  other  over  sixty,  the  former  survives.     If 

"Tisdale  v.  Conn.,  &c..  Ins.  Co..  26  Rep.    (X.  Y.)    117;   White  v.  White, 

Iowa,  170;  McNair  v.  Rvland,  1  Dev.  26  Me.  361;   Merritt  v.  Thompson,   1 

(N.  C.)   533.                       "  Hilt.    (N.  Y.  C.  P.)    550;   Puekett  v. 

""Ashbury   v.    Sanders,   8    Cal.    62;  State,  1  Sneed   (Tenn.),  355. 

Burnev  v.  Ball,  24  Ga.  505;    Matter  "Gerry  v.  Post,   13   How.  Pr,    (N. 

of  Hail,  Wall.,  Jr.   (U.  S.)   85.  Y.)    118. 

"  Eagle  V.  Emmett,  4  Bradf.  Surr,  '  Dig.,  lib.  34,  tit.  5. 


Sec.  51.] 


Presumptions. 


191 


both  parties  were  "between,  those  ages,  but  of  different  sexes,  it  is 
presumed  that  the  male  survived,  unless  he  wus  more  than  a  year 
younger  than  the-  female;  but  as  between  fhose  of  the  same  sex, 
it  is  presumed  that  the  youngest  survives.^  But  by  the  common 
law  there  is  no  presumption  either  of  survivorship  or  contempor- 
aneous death,  hut  in.  the  absence  of  all  evidence  upon  the  point,  it 
will  be  treated  as  a  matter  incapable  of  being  determined.^  The 
question  is,  from  the  beginning  to  the  end,  one  of  fact,  as  bearing 
upon  which  the  sex,  age  and  relative  physical  strength  of  the  per- 
sons who  were  lost  may  be  shown,  and  is  generally  the  only  evi- 
dence Avhich  can  be  had  upon  the  question ;''  and  as  a  rule,  in  the 
absence  of  any  evidence  upon  which  a  finding  can  be  based,  it  will 
be  presumed  that  all  perished  at  the  same  moment.^  In  other 
words,  as  the  fact  is  incapable  of  proof,  the  courts  will  asume  that 
all  perished  at  the  same  second  of  time. 


=  Code  Civil,  §  §  720,  721,  722. 
•Wing  V.  Augram,  8  H.  L.  Cas. 
183;  Newell  v.  Nichols,  75  N.  Y.  78; 
Smith  V.  Croom,  7  Fla.  81;  Coye  v. 
Lach,  8  Met.  (Mass.)  371.  But  see 
Pell  V.  Ball,  1  Cheve  (S.  C),  part  2, 
57,  where  the  civil  law  rule  was  prac- 
tically adopted. 

*  Underwood  v.  Wing,  4  D.,  M.  & 
G.  24;  Green's  Settlement,  L.  R.,  1 
Eq.  289. 

"  Sir  John  Nicoll  in  Taylor  v.  Dip- 
lock,  2  Thill.  201  ;  In  the  Matter  of 
Selwyn,  3  Hogg  Ec.  Rep.  748. 

In  the  language  of  Church,  C.  J., 
in  Newell  v.  Nichols,  73  N.  Y.  78.  in 
which  case  a  mother,  aged  sixty-nine, 
a  son-in-law,  aged  forty-five,  and  two 
children,    aged    respectively    ten    and 
seven    years,    perished    in    the    same 
shipwreck  at  sea,  and  in  the  absence 
of    any    other    evidence    it    was    held 
that  there    was    no     presumption   of 
survivorship,  "There  are  cases  where 
a     strong     probability    in    theory     at 
least  would  arise  that  one  person  sur- 
vived another,  and  perhaps  as  strong 
as  that  there  was  a  survivor,  and  yet 
the  common  law  wisely  refrains  from 
acting  upon   it  in  either  case.     It  is 
regarded  as  a  question  of  fact  to  be 
proved,  and  evidence  merely  that  two 
persons   perished   by  such  a  disaster, 
is  not  deemed  sufficient.     If  there  are 
other    circumstances    shown,    tending 
to    prove    survivorship,    courts    will 


then  look  at  the  whole  case  for  the 
purpose  of  determining  the  question, 
but  if  only  the  fact  of  death  by  a 
common  disaster  appears,  they  will 
not  undertake  to  solve  it  on  account 
of  the  nature  of  the  question  and  its 
inherent  uncertainty.  It  is  not  im- 
possible for  two  persons  to  die  at  the 
same  time,  and  when  exposed  to  the 
same  peril  under  like  circumstances, 
it  is  not,  as  a  question  of  probability, 
very  unlikely  to  happen.  At  most 
the  difference  can  only  be  a  few  brief 
seconds.  The  scene  passes  at  once  be- 
yond the  vision  of  human  penetra- 
tion, and  it  is  as  unbecoming  as  it 
is  idle  for  judicial  tribunals  to  specu- 
late or  guess  whether  during  the 
momentary  life  struggle  one  or  the 
other  may  not  have  ceased  to  gasp 
first,  especially  when  the  transmis- 
sion of  title  to  property  depends  upon 
it,  and  hence  in  the  absence  of  other 
evidence  the  fact  is  assumed  to  be 
unascertainable,  and  property  rights 
are  disposed  of  as  if  death  occurred 
at  the  same  time.  This  is  done  not 
because  the  fact  is  proved,  or  that 
there  is  any  presumption  to  that  ef- 
fect, but  because  there  is  no  evidence, 
and  no  presumption  to  the  contrary. 
The  authorities  are  uniform  upon 
this  doctrine,  but  the  expressions  of 
some  of  the  judges  in  announcing  it 
are  liable  to  be  misunderstood  as  in- 
dicating a   presumption  of  simultan- 


192 


Evidence. 


[Chap.  3 


Sec.  52.  Sanity  and  Suicide. 

Inasmuch  as  sanity  is  the  normal  condition  of  man,  every  one 
is  presumed  to  be  sane,  and  that  presumption  holds  good,  and  is 
the  full  equivalent  of  express  proof,  until  it  is  successfully  re- 
butted. When  insanity  oi  one  accused  is  set  up  as  a  defense,  it  is 
incumbent  on  him  to  rebut  the  ordinary  presumption  of  sanity, 
and  show,  not  beyond  a  reasonable  doubt,  nor  either  clearly  or 
conclusively,  but  by  fairly  preponderating  evidence,  such  as  is 
ordinarily  required  to  prove  a  fact  in  civil  issues,  that  he  was 
insane  at  the  time  of  committing  the  alleged  crime.^  So  the  bur- 
den of  proof  to  show  incapacity  to  make  a  will  or  deed  is  upon 
the  contestants,  the  original  presumption  of  sanity  and  capacity 
being  always  indulged  and  this  burden  can  only  be  discharged  or 


eous  death,  which  is  not  the  rule.  For 
instance  Sir  William  Wynne  said  : 
"  I  alwaj's  thoujjlit  it- the  most  natur- 
al presumption  that  all  died  together, 
and  that  none  could  transmit  rights 
of  property  to  airother."  Rex  v. 
Heapes,  2  Salk-  593;  2  PhiU.  296, 
note  c;  Doe  v.  Nepean,  5  B.  &  Ad. 
91,  92. 

"  Sir  John  Nicoll  said:  '  I  assume 
that  both  perished  in  ttie  same  mo- 
ment.' Taylor  v.  Diplock,  2  Phill. 
261;  In  the  Matter  of-  Sehvyn,  3 
Hagg.  Ec.  R.  748.  And  in  the  ab- 
.sence  of  clear  evidence  it  has  gener- 
ally been  taken  that  both  died  in  the 
same  moment.  Sir  Herbert  Jenner 
said:  'The  parties  must  be  presumed 
to  have  died  at  the  same  time.'  1  Cur- 
ties,  705. 

"  These  e.Kpressions  only  mean  that 
as  the  fact  is  incapable  of  proof,  the 
one  upon  whom  the  onus  lies  fails, 
and  persons  thus  perishing  must 
be  deemed  to  have  died  at  the  same 
time,  for  the  purpose  of  disposing  of 
their  property.  The  Lord  Chancellor, 
In  Wing  V.  Underwood,  supra,  recog- 
nized the  distinction,  and  explained 
the  meaning  of  the  rule.  In  com- 
menting upon  a  similar  expression 
of  the  Master  of  the  Rolls  to  the  ef- 
fect that  he  must  assume  that  Mr. 
and  Mrs.  Underwood  both  died  to- 
gether, the  Chancellor  said :  '  From 
personal  communication  with  his 
honor,  I  know  that  he  is  not  aware 
that  he  ever  used  such  an  expression. 


and  all  he  ever  meant  to  say  was 
that  the  property  must  be  distribut- 
ed just  as  it  would  have  been  if  they 
hud  both  died  at  the  same  moment.' 
And  Mr.  Best,  in  his  work  on  Pre- 
sumptions, after  laying  down  the 
general  rule,  states  that  it  is  not  cor- 
rect to  infer  from  this  that  the  law 
presumes  both  to  have  perished  ,at 
the  same  moment,  and  adds:  'The 
practical  consequence  is,  however, 
nearly  the  same,  because  if  it  cannot 
be  shown  which  died  first,  the  fact 
will  be  treated  by  the  tribunal  as  a 
thing  unascertainable.  so  that  for  all 
that  appears  to  the  contrary,  both 
individuals  may  have  died  at  the 
same  moment.'  All  the  common-law 
authorities  are  substantially  the 
same  way.  and  the  rule,  which  I  think 
is  wise  and  safe,  should'  be  regarded 
as  settled.  Its  propriety  is  not 
weakened  by  the  circumstances  that 
its  first  application  in  this  court  pre- 
vents this  estate  from  being  turned 
into  channels  never  contemplated  or 
intended  by  the  testatrix." 

'  Commonwealth  v.  Gerade,  145 
Penn.  State  289,  22  A.  464;  27  Am. 
St.  Rep.  689;  State  v.  Lawrence,  57 
Maine  574;  McNaghten's  case.  10  CI. 
&  Finn,  200;  confnt,  to  the  etfect  that 
where  the  jury  is  left  in  doubt  as  to 
insanity  thev  should  acquit,  see 
Davis  V.  U.  *S..  160  U.  S.  469;  16 
Sup.  Ct.  Rep.  353 :  People  v.  Garbutt, 
17  Mich.  9. 


Sec.  52.]  Presumptions.  193 

shifted  bj  showing  prior  habitual  or  fixed  insanity,  or  actual  in- 
sanity or  other  incapacity  at  the  date  of  the  execution  of  the 
instrument.^  Also  where  one  is  sane  for  the  most  of  the  time  and 
his  spells  of  insanity  are  transient  the  burden  is  upon  him  who 
would  prove  that  he  was  insane  at  the  time  he  signed  a  certain 
contract.^  But  insanity  in  its  nature  permanent,  when  once  proved 
to  exist,  is  presumed  to  continue,  and  the  burden  is  on  the  party 
relying  upon  sanity  to  prove  a  lucid  interval.*  \Miere  a  person 
is  adjudicated  mentally  unsound  and  a  guardian  is  appointed  for 
him  this  is  jjrima  facie  evidence  of  want  of  testamentary  capacity, 
and  the  burden  is  upon  those  who  seek  to  uphold  a  will  made  by 
such  a  person  to  show  by  clear,  explicit  and  satisfactory  evidence 
that  at  the  time  it  was  executed  the  maker  had  the  requisite  de^ 
gree  of  mental  capacity.^ 

As  the  love  of  life  is  ordinarily  a  sufficient  inducement  for  its 
preservation  suicide  will  not  be  presumed  in  the  absence  of  definite 
proof,  but  the  presumption  is  against  suicide.*'  So  the  death,  even 
of  an  insane  person  is  presumed,  in  the  absence  of  proof,  to  be 
natural  or  accidental  and  not  suicidal.'^  But  this  is  a  rebuttable 
presumption  and  easily  yields  to  physical  facts  clearly  incon- 
sistent with  it.  It  is  not  proof,  nor  does  it  stand  in  the  way  of 
proof,  and  when  sufficient  evidence  is  introduced  to  overcome  this 
legal  presumption,  it.  disappears.  So  where  a  deceased  person  w^as 
found  alone  with  a  revolver  in  his  hand  and  a  wound  in  his  tem- 
ple in  a  place  where  no  one  could  have  been  in  the  vicinity,  with 
a  memorandum  explaining  suicide  the  lower  court  may  properly 
direct  a  verdict  of  suicide.^  And  where  a  defaulting  officer  is 
■found  dead  in  his  own  house  and  leaves  a  note  written  in  view 
of  his  death  the  court  may  direct  the  jury  to  find  a  death  by  sui- 
cide.® 

^Eastis    V.    Montgomery,    95    Ala.  61  Minn.  516,  52  Am.  State  Rep.  61G, 

486.  10  So.  204;  36  Am.  St.  Rep.  227.  63  N.  W.  1108. 

Eakin   v.    Hawkins,   52   W.   Va.    124;  MValcott  t.  Metropolitan  Life  Ins. 

43  S.  E.  211.  Co.,  64  Vt.   221,  24  A.   992;    33  Am. 

'McPeck's       Heirs       v.      Gfaham's  St.  Rep.  923. 

Heirs    (W.  Va..   1904),  49   S.  E.  125.  *  Hardinger  v.  Modern  Brotherhood 

*In  re  Knox's   Will.   24   Iowa,   24,  of  America    (Neb.,    1905),   103   N.   W. 

9§  N.  W.  468.  "4.  See  also  Ross-Lewin  v.  Germanian 

Keely  v.  Moore,   196   U.   S.   38;   25  Life     Insurance     Co.      (Colo.      App., 

S.  Ct.  169.    As  to  wills.  1904).  78  Pac.  305. 

^Harrison  v.  Bishop,  131  Ind.   161,  'Clemens    v.     Royal     Neighbors    of 

30  N.  E.  1069.  31  Am.  St.  Rep.  422.  America    (N.    D.,    1905),    103    N.    W. 

«Hale  V.   Life  Indemnity,  etc.   Co.,  402. 
13 


104  Evidence.  [Chap.  3 

Sec.  53.  Ships  not  heard  from. 

It  is  a  rule  in  insurance  law,  that  when  a  vessel  has  sailed  upon 
a  voyage,  and  no  tidings  of  her  have  been  received  within  a  rea- 
sonable time,  she  shall  be  presumed  to  have  foundered  at  sea.^  But 
there  must  be  some  evidence  that  when  she  left  the  port  of  outfit 
she  was  bound  upon  the  voyage  insured."  This  presumption  is  so 
strong  that  it  cannot  be  rebutted  by  mere  rumors,^  nor  is  it  neces- 
sary to  call  witnesses  from  the  port  of  destination ;  it  is  sufficient 
if  it  is  shown  that  she  has  not  been  heard  of  at  the  port  of  outfit, 
after  she  sailed  ;^  nor,  even  though  it  appears  that  the  crew^  were 
saved,  is  it  necessary  to  call  any  of  them,  nor  to  show  that  it  was 
impossible  to  do  so.^  No  definite  time  has  been  fixed  upon,  cither 
by  the  common  law  or  the  custom  of  merchants,  after  which  the 
insured  may  demand  payment  of  his  loss,  when  no  intelligence 
of  tbe  vessel  has  been  received.  But  the  question  in  each  case, 
whether  a  reasonable  period  for  receiving  tidings  of  the  vessel  has 
elapsed  or  not,  is  one  of  fact  for  the  jury ;  although  a  practice  has 
grown  up  among  insurers  in  England,  of  deeming  a  vessel  lost  if 
she  is  not  heard  from  within  six  months  after  her  departure  for 
any  port  in  Europe,  or  in  twelve  months  if  bound  for  a  greater 
distance.®  If  a  ship,  shortly  after  sailing,  without  visible  or  ad- 
equate cause  becomes  leaky  or  otherwise  unfit  for  the  voyage,  it  is. 
presumed  that  she  was  unseaworthy  when  the  risk  commenced.^ 
Thus,  where  a  vessel,  on  the  next  day  after  sailing,  suddenly 
sprung  a  leak  and  was  lost,  without  any  strees  of  weather  or  other 
visible  cause  to  which  the  leak  could  be  ascribed,  it  was  held  that 
the  loss  should  be  imputed  to  some  latent  or  inherent  defect  in  the 
vessel,  w^hich  rendered  her  unseaworthy,  and  for  which  the  under- 
writers were  not  liable.^ 

Sec.  54.  Accounts. 

It  is  presumed  that  an  entry  in  a  book  of  accounts,  as  originally 
made,  was  correct ;  consequently,  if  it  is  subsequently  changed,  the 

>  Green    v.    Brown,    2    Str.     1199;  'Parker  v.  Potts,  3  Dan.  23;  Wat- 

Newby  v.  Reed   1   Park  on   Ins.   148;  son  v.    Clark,     1     id.    344;    Munro  v. 

Koster  v.  Reed,  6  B.  &  C.  19;   Brown  Vandam.   1   Park  on  Ins.  469. 

V.  Neilson,  1  Cai.   (N.  Y.)  525.  'Patrick  v.   Hallett,    3    John.   Cas. 

'Coster  V.  Innes,  Ry.  &  M.  333.  (N.   Y.)    76;    Talcott   v.    Commercial 

5  Koster  v.  Reed,  ante.  Ins.     Co.,     2     John.     (N.     Y.)      124; 

*Twemlaer  v.  Oswin,  2  Camp.  85.  Wright  v.  Orient  Ins.  Co.,  6  Bos.   ( N^. 

*  Koster  v.  Reed,  ante.  Y. )    269 ;   Sturm  v.  Gt.  Western  Ins. 

•  1  Park  on  Ins.   149.  Co.,  40  How.  Pr.   (N.  Y.)   423. 


Sec.  55.]  Presumptions.  195 

burden  is  upon  the  party  presenting  the  account  to  show  that  the 
alteration  expresses  the  real  facts.^  So,  where  it  appears  from  the 
books  of  the  parties,  or  from  any  other  source,  that  the  accounts 
between  them  have  been  settled,  and  a  balance  struck  and  agreed 
upon,  it  will  be  presumed  that  the  balance  so  agreed  upon  is  cor- 
rect, and  the  burden  of  showing  the  contraij  is  upon  the  party 
who  seeks  to  set  aside  the  settlement.'  Where  the  accounts  be- 
tween the  parties  afford  no  evidence  of  a  settlement  having  been 
made  between  them,  they  are  presumed  to  be  open,  and  the  burden 
of  proving  the  contrary  is  upon  the  party  who  claims  that  they 
were  liquidated.^  Where  an  account  is  given  or  forwarded  to  the 
other  party  and  retained  by  him  for  a  long  time  without  objec- 
tion, it  is  presumed  to  be  correct,''  and  the  burden  is  upon  the  party 
receiving  it  to  prove  its  inaccuracy.^ 

Sec.  55.  Agency. 

Where  a  person  makes  a  contract,  oral  or  written,  representing 
himself  to  be,  and  as  the  agent  of  another,  it  is,  as  between  him  and 
the  partij  icitk  ichom  he  contracted  in  the  firpt  instance,  presumed 
that  he  had  authority  to  so  act,  and  in  an  action  against  him 
thereon  the  burden  is  upon  the  plaintiff  to  show  that  he  had  no 
authority  in  fact  to  make  such  contract.  Thus,  where  a  prom- 
issory note  is  given  to  B.,  signed  by  A.,  agent  for  C,  as  the  note 
upon  its  face  docs  import  a  personal  obligation,  the  burden  is  upon 
the  plaintiff  to  show  his  personal  liability,*  but  in  an  action  against 
the  supposed  principal,  there  is  no  presumption  either  way,  but 
the  burden  is  upon  the  party  seeking  to  enforce  the  contract,  to 
establish  in  some  way,  by  independent  evidence,  the  fact  of 
agency.^  The  legal  presumption  is  that  when  one  kno\vn  to  be  an 
agent  deals  or  contracts  within  the  scope  of  his  authority  credit  is 
extened  to  the  principal  and  not  to  the  agent.^   But  where  a  per- 

VSheiles  v.  West.   17   Cas.  324;    S.  "  Bertrand  v.  Taylor,  32  Ark.  470; 

P    State  V.  knapp.  45  N.  H.   148.  Vandeveer  v.    Statesir,    39    N.   J.   L. 

^  Mills  V.  Johnston,  23  Tex.  308.  593                                     =  ^      ,tt    o    n 

^M'Lellan  v.  Crofton,  6  Me.  ;iu8.  « Bradley  v.  McKee,  5  Cr.  (U.  b.  L. 

*Chebb  V.  Chambers,    3    Ired.    (N.  C)   298. 

C  )    L     374 ;     Sheppard    v.     Bank  of  '  Holmes    v.    Dodge,    1    Abb.    Adm. 

Missouri,    15   Mo.     U3 ;     Freeland  v.  (U.  S.)    60;   Reynolds  v.  Continental 

Heron,  7  Cr.    ( U.  S.)    147;   Darby  v.  Ins.  Co.,  36  Mich.   131. 

L:.strapes,  28  La.  An.  605;  Eowell  v.  « Anderson  v.  Timberlake,   114  Ala. 

Pacific     R.     R.     Co.,     65     Mo.     658;  r.77,  22  So.  431 ;  62  Am.  St.  Rep.  105. 
Greene  v.  Harris,  11  R.  I.  105. 


196  Evidence.  [Chap.  3 

son  deals  with  a  person  who  is  agent  for  a  foreign  principal,  the 
presumption  is  that  he  does  not  contract  with  the  foreigner,  l)ut 
trusts  the  person  with  whom  he  actually  makes  the  bargain  f  but 
although  Judge  Story,  in  his  work  on  Agency/^  says  tliat  this 
presumption  is  so  strong  as  almost  to  amount  to  a  presumption  of 
law,  yet  it  is  held  that  the  presumption  may  be  rebutted  by  any 
evidence,  extrinsic  or  intrinsic,  which  tends  to  show  that  credit 
was  given  to  the  foreign  principal. ^^ 

Sec.  56.  Carriers;  Negligence,  &c. 

In  the  case  of  common  carriers,  whether  by  land  or  water,  upon 
proof  of  delivery  of  goods  to  them  and  loss  of  them  by  them  it  is 
presumed  that  they  were  lost  by  their  negligence,  and  tlie  burden 
is  upon  them  to  show  that  they  were  lost  by  one  of  the  perils  from 
which  they  are  exempted  either  by  the  law  or  the  contract  of  ship- 
ment,^ and  the  same  rule  applies  to  bailees  for  hire.  The  fact  of 
a  shipment  of  merchandise  to  a  carrier  in  good  order  and  delivery 
in  bad  order  is  of  itself  evidence  of  negligence  on  the  part  of  the 
carrier  but  it  is  evidence  only  to  be  considered  by  the  jury  with 
all  the  other  evidence.  Where  there  was  evidence  that  merchan- 
dise shipped  was  carefully  packed  and  that  there  was  no  accident 
or  collision  of  any  description  in  the  course  of  the  transportation 
the  whole  question  is  for  the  jury.  There  is  no  burden  upon  the 
carrier  to  show  just  how  the  accident  happened  in  order  to  re- 
lieve it  from  the  charge  of  negligence.'  As  between  connecting 
lines  the  carrier  in  whose  hands  property  is  found  damaged  is 
presumed  to  have  caused  the  damage  and  the  burden  is  upon  him 
to  rebut  the  presumption.^  But  this  presumption  only  applies  in 
the  case  of  common  carriers  of  goods,  and  in  the  case  of  carriers 
of  passengers,  except  in  special  instances,  some  proof  of  negli- 
gence must  be  given  ;*  but  as  in  the  case  of  a  railroad  company, 

'Heald    v.    Kentworthv.    10    Exch.  'Buck  v.   Penn.  R.  Co.,   150  Penn. 

743;   Story  on  Agency,  §290.  State,    170,   24   A.    678;    30   Am.    St. 

"  §  290.                      '  Re\).  800. 

"Green   v.   Kopke.    18    C.    B.    549;  '  Morjjanton    Manufacturinor   Co.    v. 

Mahonev  v.  Kekute,  14  id.  390.  Ohio,  etc..  By.  Co.,  121  N.  C.  514,  28 

'Tarbox  v.  Eastern  Steamboat  Co.,  8.  E.  474:   61  Am,  St.  Rep.  679.   ' 

50     Me.    339 :     Steamer    Niagara     v.  *  Mitchell    v.    Western,    &c.,    R.  R. 

Cordes,  21   How.    (U.  S.)    7:   Shaw  v.  Co..    30    Ga.    22:     Northern    Central 

Kardner.     12     Grav     (Mass.).     488;  Railway  Co.   v.   State.    54    Md.    113; 

Ross  V.  Hill,  2   C.   B.  890;    Coggs   v.  McKissock   v.   St.   Louis,    &c.,    R.   R. 

Barnard,  2  Ld.  Ray'd.  978.  Co.,  73  Mo.  456. 


Sec.  56.]  Presumptions.  197 

where  an  injury  to^  a  passenger  results  from  the  breaking  down 
of  a  passenger  coach,  the  breaking  of  a  rail,  the  falling  away  of 
an  embankment,  the  breaking  down  of  a  bridge,  a  collision  of 
trains,  or  from  the  train  being  thrown  from  the  track,  the  law 
will  presume  negligence  on  the  part  of  the  company  unless  the  con- 
trary is  shown,^  because  in  these  instances  the  carrier  owes  a  duty 
to  the  passenger  to  exercise  reasonable  vigilance  to  keep  the  ap- 
pliances of  the  business  in  a  safe  condition,  and  from  the  very 
circumstance  of  the  existence  of  the  defect,  it  is  reasonable,  in  the 
first  instance,  to  presume  that  if  he  had  done  so,  the  injury  would 
have  been  avoided.  Indeed,  in  many  cases,  from  the  mere  hap- 
pening of  an  accident  a  jury  will  be  w^arranted  in  presuming  neg- 
ligence, and  this  may  be  said  to  be  the  case  ivhen  the  accident  is 
one  ivhicli,  in  the  ordinary  course  of  things,  does  not  occur  where 
proper  care  is  exercised  in,  the  management  of  the  business,  and 
consequently  affords  reasonable  grounds  for  presuming  negli- 
gence.^ Thus  where  a  stage  coach  is  overturned  or  breaks  down 
without  any  apparent  cause,  the  law  implies  negligence,  and  the 
burden  is  upon  the  owners  to  rebut  the  presumption.^  So  where  a 
building  is  injured  by  a  blast,  the  presumption  is  that  the  blast 
w^as  not  properly  covered.*  But  in  all  cases  it  must  be  remem- 
bered that  neither  fault  or  negligence  are  to  be  presumed  without 
some  evidence  upon  which  to  predicate  it.^  In  t)ther  words,  the 
plaintiff  must  show  an  injury  which  prima  facie  resulted  from 
some  fault  on  the  part  of  the  defendant.-^" 

In  Nebraska  it  is  considered  that  Kearney  v.,  London,  &e.,  Railway 
street  railway  companies  as  common  Co.,  L.  R.,  5  Q.  B.  411;  6  id.  759; 
carriers  of  passengers,  are  bound  to  Ware  v.  Gay,  11  Pick.  (Mass.)  106. 
the  utmost  care  toward  them,  and  the  'Ware  v.  Gay,  ante;  Feital  v.  Mid- 
law  presumes  that  one  injured  while  dlesex  R.  R.  Co.,  109  Mass.  398; 
being  transporated  by  a  common  car-  Brehm  v.  Gt.  Western  R.  R.  Co.,  34 
rier  was  injured  in  consequence  of  Barb.  (N.  Y.)  256;  Edgerton  v.  N. 
the  latter's  negligence ;  and  to  escape  Y.,  &c.,  R.  R.  Co.,  35  id.  389 ;  Reed 
liability  it  must  show  that  it  has  dis-  v.  New  York  Central  R.  R.  Co.,  56  id, 
charged  the  full  measure  of  its  legal  493;  Holyoke  v.  G'd  Trunk  R.  R. 
duty  and  was  in  nowise  to  blame  for  Co.,  48  N.  H.  541 :  Virginia  Central 
the  accident.  Lincoln  Street  Rv.  Co.  R.  R.  Co.  v.  Sanger.  15  Gratt.  (Va. ) 
V.  McClellan,  54  Neb.  672,  69  Am.  230;  Pittsburgh.  &c.,  R.  R.  Co.  v. 
State  Rep.  736;   74  N.  W.  1074.  Thompson,    56    111.    138;    Brignoli    v. 

^Pittsburgh,  &c..  R.  R.  Co.  v.  Wil-  Gt.  Eastern  R.  R.  Co.,  4  Daly   (N.  Y. 

Hams,     74     Ind.     462;      Flannery    v.  C.  P.),   182. 

Waterford,  &c..  R.  R.  Co..  I.  &  R.,  11  «  Ulrich  v.  McCabe,  1  Milt.    (N.  Y. 

C.    L.    30:    Skinner    v.    London,    &c.,  C.  P.)   251. 

Railway  Co.,  5  Exch.  787.  "  Lvndsav   v.   Conn.   &    Pass.   River 

-^Bryne  v.   Boadle,  2  H.  &  C-  722;  R.  R.  Co./27  Vt.  643. 

Scott  V.  London  Dock  Co.,  3  id.  596;  ^°  Terry  v.  N.  Y.  Central  R.  R.  Co. 


198  Evidence.  [Chap.  3 

Excepting  where  contractual  relations  exist  between  the  parties, 
as  in  the  case  of  carriers  of  passengers  and  some  others,  negli- 
gence will  not  be  presumed  from  the  mere  happening  of  an  ac- 
cident and  a  consequent  injury,  but  the  plaintiff  nmst  show  either 
actual  negligence  or  conditions  which  are  so  obviously  dangerous 
as  to  admit  of  no  inference  other  than  that  of  neorlio'ence.^^ 

O       O 

Sec.  57.  Character. 

It  is  presumed  that  every  man's  character  is  good  until  the 
contrary  is  proved  ;^  consequently,  in  an  action  of  slander  or  libel, 
it  is  not  necessary  for  the  plaintiff  in  the  first  instance  to  do  more 
than  prove  the  speaking  or  publishing  of  the  words  complained  of > 
and  if  the  defendant  relies  upon  the  truth  of  the  words  in  defense, 
he  must  prove  it.  The  fact  that  a  man's  character  is  shown  to 
have  been  good,  does  not  raise  a  presumption  of  innocence,  as 
against  evidence  which  reasonably  raises  a  presumption  of  guilt.^ 
It  is  said,  however,  that  in  a  criminal  case  there  is  no  presumption 
that  the  character  of  the  accused  is  either  good  or  bad.^  In  civil 
actions,  with  the  exception  of  those  cases  where  by  the  pleadings 
tlie  character  of  the  party  is  put  in  issue  the  weight  of  authority 
is  against  the  admissibility  of  such  testimony  to  rebut  imputa- 
tions of  misconduct  or  fraud.  In  criminal  cases  the  character  of 
the  defendant  cannot  be  attacked  by  tlie  presumption  unless  evi- 
dence of  his  good  character  is  introduced  by  the  defendant.  In 
an  action  by  an  employer  to  recover  money  claimed  to  be  wTong- 
fully  appropriated  by  an  employee,  evidence  of  the  good  character 
of  the  employee  is  not  admissible.^  Where  the  evidence  is  such  as 
to  raise  a  presumption  against  a  man's  character,  and  he  does  not 
attempt  to  remove  it,  it  will  be  presumed  that  it  cannot  be  done,^ 
and  such  a  presumption  cannot  be  removed  by  showing  that  the 
party  holds  a  certain  public  position,  as,  that  he  is  licensed  to 
practice  as  an  attorney,^  because  experience  has  demonstrated  that 
persons  who  have  been  elevated  to  high  positions  are  liable  to  be 

22   Barb.    (X.  Y.)    574;      Buel   v.   N.  ^Dryman  v.  State,  102  Ala.  130,  15 

Y.  Central  R.  R.  Co..  31  X.  Y.  314.  So.  433:  Gater  v.  State   (Ala.,  1905), 

"  Stearns   v.   Ontario  Spinning  Co..  37  So.  692. 

184  Penn.  State.  519.  39  A.   292:   63  *  Adams  v.  Elseffer.  132  Mich.   100, 

Am.  St.  Rep.  807.  02  X.  W.  772. 

^Goggans  v.   Monroe,    31     Ga.   331.  =  Paries   v.    Richardson,   4   B.    Men. 

See  also  pi  —  jiost.  (Ky.)    276. 

•State  V.  Hagard,   12  Minn.  293.  '  Haynes  v.  State,  17  Ga.  465. 


Sec.  58,]  Presumptions.  199 

lacking  in  integrity,  and,  if  a  man's  character  is  really  good,  it 
is  reasonable  to  presume  that  he  can  always  show  it  by  direct 
proof. 

Sec.  58.  Fraud,  Undue  Influence  or  Illegality. 

Fraud  is  never  presumed,  either  at  law  or  in  equity,^  but  the 
burden  is  upon  the  party  alleging  it  to  prove  it,^  unless  the  circum- 
stances shoivn  are  of  such  a  strong  and  pregnant  character  that  no 
other  reasonable  conclusion  can  he  drawn  from  them,  in  which 
case  the  burden  is  shifted  upon  the  other  party  to  prove  bona 
fides  in  the  transaction  ;*  and  if  the  presumptive  circumstances  are 
strong,  they  will  outweigh  positive  testimony  against  it.^  It  will 
not  be  presumed  that  a  party  will  violate  his  contract,  and  an  al- 
gation  of  the  complaint  that  it  intends  to  do  so,  in  advance  of  any 
act  constituting  such  violation,  cannot  prevail  against  the  pre- 
•sumption  of  good  faith  and  fair  dealing.^ 

The  fact  that  a  will  is  made  favorable  to  one  who  took  care  of 
the  testator  in  his  last  illness  does  not  raise  the  presumption  of 
nndue  influence,  as  undue  influence  is  a  defense  and  is  not  to  be 
presumed.^  The  burden  of  proof  in  its  proper  sense  does  not 
ordmarily  shift  from  one  party  to  the  other  so  long  as  the  parties 
remain  at  issue  upon  a  proposition  affirmed  upon  the  one  side  and 
denied  upon  the  other.  So  where  a  contestant  of  a  will  shows 
various  circumstances  tending  to  show  undue  influence,  as  that  a 
certain  party  benefitted  from  the  will  and  was  in  close  confidential 
relations  to  the  testator,  this  evidence  is  properlv  considered  by 
the  jury  but  it  does  not  shift  the  burden  of  proof.  This  burden 
upon  the  whole  evidence,  having  in  view  the  situation  referred 
to  and  of  the  other  circumstances,  is  still  upon  the  contestant  who 
IS  to  sustain  the  proposition  affirmed  by  him  by  a  preponderance 

fTennTW/-  J^"""^"'*'^^,  ^     '^^""^V  '  ^ager  v.   Thomson,  ante. 

39   Mo.    91;    Wright    V.     Prescott,    2  ^  Hair  v    Little    oiite 

^Suel^'iN"  V?'=-ff'T  \  ^r^'  ^^l^-t'.'^Stap^.ra"... 

?io         11^^-   ^'V,.^^^'      Packard    V.  -^Mordhurst  v    St.  Wayne  &  S    W 

Clapp,  11  Gray   (Mass.),   124;     Oaks  Traction   Co.    (Ind     190?,     4  N    F 

V.    Harrison,   24   Iowa,    179;    Hair   v.  64'^                                           ''    '  ^   ^-   J^" 

3  Daua''(l^i  'fs^  ^''""'"  "  '''^^'''      .  "^McMaster  v.  Scriven,  85  Wis.  162, 
6  uana   (Ky.),  439.  55  n.  W.  149,  39  Am.  St.  Rep.  828. 


200  Evidence,  [Chap.  3 

of  all  the  evidence.  Such  evidence  does  not  raise  a  presumption 
of  law  of  undue  influence  as  the  issue  is  one  of  fact  and  the  court 
disapproves  of  a  statement  that  any  particular  evidence  is  suffi- 
cient to  change  the  issue  from  one  of  fact  to  one  of  law,^  The 
court  should  scrutinize  carefully  a  gift  by  a  child  to  a  parent,  but 
the  burden  of  proof  even  in  this  case  is  on  him  who  would  show 
the  gift  void  from  undue  influence.^  But  it  is  said  that  one  who 
takes  care  of  a  testator  in  his  last  illness  and  who  has  him  entirely 
under  her  control  and  wlio  repeatedly  requests  him  to  make  a  will 
has  the  burden  of  showing  that  the  will  when  made  was  not  the 
product  of  undue  influence  especially  where  the  testator  has  made 
an  unnatural  and  unjust  disposition  of  His  property.^" 

So  it  is  presumed  that  all  persons  act  legally.  Thus  the  pre- 
sumption is  that  the  acts  of  fiduciaries  are  legal  and  all  done  in 
good  faith. ^^  The  law  will  presume  where  a  statute  requires  a 
certain  kind  of  contract  to  be  in  writing  that  the  parties  to  it  have 
not  violated  the  statute,  so  in  declaring  uprtn  such  a  contract  the 
plaintiff  need  not  allege  in  his  declaration  that  it  was  in  writing.^^ 
It  will  be  presumed  that  a  legislative  act  or  municipal  ordinance 
was  duly  passed  unless  the  contrary  affrmatively  appears  from 
the  records  of  the  body.  Compliance  with  all  vital  requirements 
will  be  presumed  notwithstanding  the  silence  of  the  records. ^^  A 
territory  which  has  exercised  the  functions  of  a  municipal  cor- 
poration for  a  long  while,  will  be  presumed  to  be  legally  incorpor- 
ated.^* AYhere  work  is  liegim  by  a  private  party  upon  a  street  it 
will  be  presumed  that  the  necessary  permit  required  by  the  city 
ordinances  has  been  obtained.^''  But  it  has  been  held  that  the 
mere  fact  that  a  city  has  power  to  establish  a  dock  line  raises  no 
presumption  that  it  has  done  so  or  that  an  existing  dock  is  built 
in  accordance  with  it.^®  The  fact  that  a  party  at  a  former  trial  of 
the  same  case  had  attempted  to  procure  false  testimony  and  cor- 

^  Appeal   of    O'Brien,   Maine,    1905,  103  Ga.  661,  30  S.  E.  566,  68  Am.  St. 

60  A.  880.  Kep.   136. 

•Towson   V.   Moore,    173   U.    S.    IT,  ''Portland  v.  Yiek,  44  Or.  439,  75 

19  S.  Ct.  332.  Pnc.  706. 

^»  Carroll  V.  Hause,  48  N.  J.  Equitv,  "People   v.    Pike.    197    111.   449,   64 

269,  22  A.  191,  27  Am.  St.  Rep.  469'  X.  E.  R.  393. 

,     "  McCreery  v.  First  National  Bank  '^  MoWetlev      v.      Aurora      Electric 

of  Bluefield,"  55  W.  Va.  663,  47  S.  E.  Light  &   Power   Co.,   202   111.  218,   67 

890.  X.  E.  R.  9. 

"Draper  v.  Macon  Dry  Goods  Co.,  ^'^  Du    Pont   v.    Sanitary   Dist.,   203 

111.  170.  67  N.  E.  R.  815'. 


Sec.  58.]  Presumptions.  201 

riiptly  to  influence  the  jurors  is  admissible  against  him  as  it 
raises  a  presumption  that  the  truth  would  operate  against  him  in  a 
fair  trial.^^  Odiosa  et  inhonesta  non  sunt  praesumenda ;^^  Injuria 
non  praes^umnntur ;^^  Omnia  praesumuntur  legitime  facta,  donee 
prohetur  in  conirariunif^  Fraus  est  odiosa,  et  non  praesumenda,^^ 
are  maxims  of  daily  application  in  our  courts,  both  of  civil  and 
criminal  jurisdiction,  to  every  diversity  of  human  action  which  is 
not  itself  of  such  a  character  as  to  pronounce  its  own  condemnation." 
A  party  having  a  legal  right,  enters  upon  land ;  the  law  presumes 
that  he  enters  with  a  view  to  that  right,  and  not  with  a  wrongful 
intention.^^  So,  that  a  deed  of  a  trustee  having  power  to  convey 
U23on  a  certain  contingency,  w^as  not  given  until  after  the  condition 
happened  f^  and  generally  that  a  trustee  has  faithfully  executed 
his  trust."*  And  so  against  every  act  of  immorality."'  Equally  so- 
against  acts  of  negligence ;  for  where  it  was  sought  to  charge  the 
defendant  with  having  placed  a  dangerous  commodity  on  board  a 
ship  without  due  notice  to  the  captain,  it  was  held  that  the  want 
of  notice  should  not  be  presumed,  but  the  contrary."^  And  there 
cannot  be  a  doubt  that  negligence  in  most  of  the  different  descrip- 
tions of  bailees  should  never  be  presumed.^''  So,  when  a  vessel  is 
in  her  usual  business,  it  will  be  presumed  that  the  master  is  on 
board,  that  being  his  duty.^^  .    . 

If,  after  every  effort  to  establish  fraud,  it  remains  doubtful 
upon  the  proof,  innocence  is  to  be  presumed.^^  So  the  presump- 
tion is  against  the  breach  of  a  positive  law.  By  an  English  statute, 
letters  not  sent  with,  and  respecting  packages,  must  be  mailed, 
and  cannot  be  sent  by  private  post.  It  appearing  that  a  letter 
was  with  the  package  in  the  parcel  sent,  the  court  presumed  that 
it  had  respect  to  the  parcel,  inasmuch  as  the  contrary  would  be  to 

"McHugh  V.    McHugh,    186  Penn.  ="  Williams  v.  The  East  India  Co.^ 

State  197,  40  A.  410.  05  Am.  St.  Rep.  3  East.  192. 

849.  "Story    on     Bailments     152,     153; 

^MO  Rep.  56.  a.  Schmidt  v.  Blood,  9  Wend.    (N.  Y.) 

"Co.  Litt.  232,  b.  268,  271. 

="00.  Litt.  232,  b.  =' Cutter  v.  Moore,  7  N.  J.  Eq.  219. 

-'  Cro.  Car.  550.  And  see  Co.  Litt.  78,  b. 

"Benson   v.    Bolles,    8    Wend.    (N.  "Lee  v.  Cook,   1   Wash.    (U.   S.  C. 

Y.)    175.  C.)    300;   Munroe  v.  Gardner,  1   Rep. 

"Morrison     v.    M'Millan,    4     Litt.  Const.  Ct.    (S.  C.)    308.     Et  in  facto 

(Ky. )    210.  quod  se   hahet   ad   bonum   et  malum, 

-■' Shilknecht   v.    Eastburn,    2   G.    &  magis  de  bono  quam  de  malo  proesu- 

J.    (Md.)    114.  mendum  est.    Co.  Litt.  75,  b. 

"Cusack   V.   White,   1   Rep.   Const. 
Ct.  (S.  C.)  282. 


202  Evide:nce.  [Chap.  3 

violate  the  act  of  parliament.^''  Upon  the  authority  of  the  last  case 
it  was  afterwards  held  that  an  importer  will  be  presumed  to  have 
caused  his  goods  to  be  entered  at  the  custom  house  according  to 
law.^^  So  strong  is  this  presumption,  that  where  a  woman  married 
within  twelve  months  after  her  first  husband  was  last  heard  of, 
his  death  was  presumed.^"  So,  evidence  that  a  theatre  has  gone  on 
to  perform  without  interruption  authorizes  the  presumption  that 
it  is  licensed  pursuant  to  the  statute  ;^^  and  a  corporation,  in  re- 
ceiving a  contract  for  debt,  will  be  presumed  to  have  acted  within 
its  powers.^* 

Sec.  59.  Alteration  of  Instruments. 

We  are  to  presume  that  an  unexplained  interlineation,  erasure, 
obliteration  or  other  alteration  of  a  written  instrument  was  made 
before  its  execution.  Such  would,  of  course,  be  the  presumption 
on  a  criminal  prosecution  for  forgery ;  and  the  range  of  decisions 
in  civil  cases,  with  a  few  exceptions,  follows  the  same  rule.^ 

Exceptions  to  this  doctrine  are  found  in  the  case  of  bills  of  ex- 
change, promissory  notes  and  the  like  commercial  paper.  Thus, 
on  a  question  arising  whether  the  date  of  an  acceptance  was  altered 
(the  alteration  appearing  on  its  face)  before  or  after  the  bill  was 
indorsed,  the  indorsement  being  unavailable  if  made  before  the 
alteration,  Abbott,  Ch.  J.,  refused  to  presume  in  favor  of  an 
alteration  at  the  proper  time,  observing  that  the  plaintiff  must 

*»  Bennett  v.   Clough,    1    B.   &   Aid.  it  as  if  it  had  been  originally  incor- 

461.  poratcd  in  the  body  of  the  deed,  "for 

»'  Sissons  V.   Dixon,   8   Dow.   &   Ry.  there  was  no  proof  when  these  words 

626;  5  B.  &  C.  758.                               '  were   interlined."     Fitz-G.    214.      The 

"  Rex  V.  Inhabitants  of  Twvning,  2  Lord  Chancellor  speaks  of  it  at  page 

B.   &  Aid.    386.      See  also   Hunter   v.  223.     In  Trowel  v.  Castle.  1  Keb.  22, 

Hunter,    111   Cal.   261.   43   P.   756,   52  it  was   given   in    charge   to   the   jury 

Am.  St.  Rep.   ISO  and  note  p.  185.  that  "an  interlineation,  without  any- 

«Rodwell  V.  Redge,  1  C.  &  P.  220.  thing   appearing    against    it,    will    be 

'*  New  York  Fireman's  Ins.   Co.   v.  presumed    to   be    af  the   time    of   the 

Sturges,  2  Cow.    (N.  Y.)   664.  making  of  the  deed,  and   not  after." 

'In  Fitzgerald  v.  Ld.'Fauconberge,  So.   in    Wickes  v.    Caulk,   5   H.  &   J. 

Fitz-G.  207,  the  interlineation  was  in  (Md.)   41,  on  objection  that  the  sub- 

a  deed  of  conveyance  or  settlement  of  scribing  witnesses'  names  were  erased, 

F.'s  estate,  and'  tended  to  enlarge  the  the    court    declared    that    "  it    is    in- 

power   of   revocation   over   his  estate,  cumbent   on   a    party   who   wishes   to 

■which    he    had    received    to    himself;  avoid  a  deed  by  its  erasure  to  prove 

and     Lord     Chief     Baron     Reynolds  that   the   alteration   was   made   after 

(with  whom  the  :Master  of  the  Rolls  its  execution  and  delivery."    See  note 

and   Lord   Chancellor     seem    to   have  433,  vol.  2. 
concurred)    said   he   must  look  upon 


Sec.  59.]  Presumptions.  203 

prove  the  alteration  to  have  preceded  the  acceptance,  otherwise  it 
would  be  void  for  want  of  a  new  stamp.^  Here,  it  will  be  per- 
ceived, was  a  complete  departure  from  the  usual  presumption  in 
favor  of  innocence;  for  the  judge  intends  a  forgery.  If  the  case 
went  on  a  general  inclination  observed  among  men  to  evade  the 
burden  imposed  by  the  stamp  laws,  it  is  obvious  that  the  onus 
would  be  changed  in  respect  to  various  other  species  of  paper,  as 
well  as  the  commercial  kind.  So,  in  a  subsequent  case,  where  the 
action  was  by  the  indorsee  against  the  acceptor  of  a  bill  of  ex- 
change, an  alteration  appearing  to  have  been  made  in  the  sum,  it 
was  held  at  bar  to  lie  with  the  plaintiff  to  prove  that  it  was  prop- 
erly made.^ 

Another  exception  has  been  made  in  case  of  an  appeal  bond, 
•though  the  court  do  not  deny  the  general  presumption  in  favor 
of  an  alteration  before  execution.  They  say  the  presumption  may 
be  rebutted ;  and  they  will  not  put  the  appellee  to  that  hazard.* 
In  the  latter  case,  it  is  said,  a  note  of  the  alteration  by  the  attest- 
ing witness  would  have  obviated  the  objection,  and  that  this  might 
have  been  subjoined  by  the  witnesses  on  the  motion  to  dismiss  the 
appeal;  and  it  is  agreed  by  all  the  cases,  that  where  the  alteration 
appears  to  be  suspicious  on  its  face,  and  is  not  duly  noted,  as  if  the 
paper  have  been  cut  close,  or  a  mutilated  figure  be  left,  or  the  ink 
differ,  or  the  handwriting  be  that  of  a  holder  interested  in  the 
alteration,  etc.,  the  onus  lies  with  the  party  who  claims  that  the 
alteration  was  genuine.^ 

So  if  the  suspicion  arises  from  extraneous  circumstances.®  And 
the  instrument  may,  in  turn,  be  sustained  by  internal  evidence  of 
fairness,  or  external  evidence  applicable  to  tHe  transaction.^ 

IsTor  is  it  to  be  disguised  that  an  unpleasant  appearance  of  con- 
trariety exists  among  the  cases  as  to  the  general  rule,  where  no 

'Johnson  v.  Duke  of  Marlborough,  OBborn,   2   Wend.    (N.   Y.)    555;    Col- 

2  Stark.  313.  lier    v.    Jacoby.    9     Cow.     125,     126; 

^^  Henman    v.    Dickinson,    5    Bing.  M'Micken    v.     Beauchamp,     2    Miller 

183.      But   see  .Cumberland    Bank    v.  (La.),  290.     See  also  Graham  v.  Mid- 

Hiill,   215.      And   see   Sayre   v.   Reyn-  dleby,  185  Mass.  349. 

olds,   737;     Rankin    v.     Blackweir,   2  "Campbell    v.    Roe,    2    Hawks     (N. 

John.  Cas.    (N.  Y.)    198,  200.  C),  93. 

*  Sutphen    v.    Hardenberg,    9    N.   J.  ^  Glanville     v.     Paine,    Barnardist. 

Eq.   288;    Shinn  v.   White,    10   N.   J.  Ch.    Rep.    18.      And   .see    Cumberland 

Eq.   187.  Bank  v.  Hall,  5  N.  J.  Eq.  215;   Ran- 

>>  Bishop  V.  Chambre,  3  C.  &  P.  55 ;  kin   v.    Blackwell,   2   John.   Cas.    (N. 

Nunnery    v.     Cotton,     1     Hawks    (N.  Y.)    198. 
C. ) ,  222 ;   Jackson  ex  dem.   Gibbs  v. 


204 


Evidence. 


[Chap,  a 


suspicion  arises  independent  of  tlie  alteration  itself,  while  various 
high  authorities  follow  the  ancient  rule  of  presumption  in  favor 
of  an  alteration  before  execution.* 

Where  a  deed  or  assignment  is  offered  in  evidence  as  a  link  in 
a  chain  of  title,  it  is  admissible,  notwithstanding  an  alteration 
bj  erasure  and  interlineation  apparent  on  the  face  of  the  instru- 
ment, in  a  different  ink.®    This  is  sometimes  placed  on  the  ground 


'  12  Vin.  Abr.  57.  Evidence  Q.,  a.  2, 
pi.  5;  13  id.  41,  Faits  u,  pi.  11;  2 
Wood's  Inst.  (10th  ed.)  286.  ch.  3; 
]  Swift's  Syst.  310;  4  Cruis.  Dig. 
40(5.  tit.  32,  ch.  20,  §  10;  Rankin  v. 
P.laekwell,  2  John  Cas.  (X.  Y.)  198; 
Cumberland  Bank  v.  Hall,  5  X.  J. 
Eq.  215;  Stark.  Ev.  pt.  4,  p.  476, 
note  h;  Prevost  v.  Gratz,  0  Wheat. 
(U.  S.)  481,  502.  Other  ca.ses,  or  at 
least  other  dicta  of  verj'  able  judges, 
are  diametrically  opposed.  In  Gibbs 
V.  Osborn,  2  Wend.  (N.  Y. )  555,  al- 
though that  case  is  sustainable  on  the 
ground  of  a  strong  suspicion,  inde- 
pendent of  the  mere  erasure,  yet  the 
reasoning  of  the  court,  who  speak  by 
Sutherland,  J.,  is  general,  and 
would  seem  to  change  the  onus  in  all 
cases.  The  authorities  cited  by  him 
apparently  relate  to  one  case  only, 
viz.:  that  of  an  altered  deed,  the  ex- 
ecution of  which  is  claimed  to  be 
proved  by  its  age  and  possession  un- 
der it.  In  such  a  case  age  and  pos- 
sfssion  are  not  sufficient,  but  the  or- 
dinary proof  must  be  resorted  to. 
Mr.  Phillipps,  vol.  1.  p.  405.  ed.  of 
1823,  cited  by  the  learned  judge,  also 
■would  seem  applicable  to  cases  of  al- 
teration generally.  The  dictum  of 
Washington,  J.,  in  the  case  of  Pre- 
vost v.  Gratz.  in  note  b  to  the  above 
page  of  Phillipps.  reported  in  1  Pet. 
.  U.  S.  C.  C. )  364,  369,  is  to  the  same 
eflect  with  the  doctrine  of  Suther- 
land, J. ;  and  both  are  sustained  by 
the  Nisi  Prius  decision,  and  charge 
to  the  jury  of  McKean,  C.  J.  Morris' 
Lessee  v.  Vanderen,  1  Dal.  (U.  S. ) 
64,  67.  Tlie  force  of  Mr.  Justice 
Wa.shington's  decision  and  dictum, 
in  Prevost  v.  Gratz,  was  taken  away 
by  a  review  and  reversal  of  his  de- 
cree, in  the  Supreme  Court  of  the 
United  States  (S.  C,  6  Wheat,  481, 
c02),  by  which  the  authority  of  that 


high  tribunal  is  turned  in  favor  of  the 
ancient  rule.  Duncan,  J.,  speaking 
of  that  case,  in  Heffelfinger  v.  Shutz, 
16  S.  &  R.  (Penn.)  47,  calls  it  a  pre- 
sumption made  in  favor  of  innocence, 
"  even  where  the  alteration  was  in 
favor  of  the  person  in  whose  hand- 
writing it  was."  Still,  however,  if 
we  superadd  the  decisions  of  the 
English  courts  upon  commercial 
paper,  which,  although  we  have  set 
them  down  as  making  an  exception, 
ure  not  directly  so  treated  by  the 
judges,  the  discrepancy  may  be' quite 
tjnbarrassing.  We  called  those  cases 
exceptions,  because  they  do  not  pro- 
fess to  overrule  or  question  the  an- 
cient cases.  It  is  certainly  a  point  of 
no  little  interest,  how  the  rule  shall 
finally  stand,  which  must  exercise  al- 
most a  daily  influence  on  important 
rights.  The  dictum  of  a  learned 
court,  proceeding  mainly  according  to 
the  civil  law,  also  sustains  the  above 
departures  from  what  was  clearly  the 
ancient  rule  of  the  common  law.'  We 
allude  to  the  late  case  of  McMicken 
V.  Beauchamp.  2  Miller  (La.),  290. 
There  a  contract  appeared  to  be  al- 
tered in  a  material  part  by  different 
ink.  The  court  disregarded  the  dif- 
ference of  the  ink  (which  we  have 
seen  would  have  changed  the  onus 
under  the  old  common-law  rule)  ; 
and,  on  quotations  from  the  civil  law, 
as  construed  by  Spanish  commenta- 
tors, take  the  broad  ground,  " that 
writings  erased  or  interlined,  are  pre- 
sumed to  be  false."  They  add  that 
''the  rules  in  relation  to  this  subject, 
cited  from  the  Spanish  and  civil  law,, 
are  in  conformity  with  the  law  of 
merchants,  and  all  systems  of  juris- 
prudence Avith  which  we  have  any  ac- 
quaintance." 

"Smith   V.  McGowan,  3   Barb.    (N. 
Y.)   404. 


Sec.  59.]  Presumptions.  205 

that  the  law  presumes  an  interlineation  in  a  deed  to  have  been 
made  at  or  before  the  time  of  its  execution. ^'^  In  some  of  the 
States  no  such  presumption  is  raised.^^  There  being  no  circum- 
stance of  suspicion  appearing  upon  the  deed,  except  that  which 
arises  from  the  mere  fact  of  the  erasure  or  interlineation,  the 
court  will  not  presume  a  forgery  of  the  instrument ;  but  when  tlie 
alteration  of  the  paper  is  such  as  to  change  its  legal  effect  in  favor 
of  the  party  producing  it,  the  presumption  that  it  was  made  be- 
fore execution  is  not  very  strong — barely  sufficient  for  its  admis- 
sion in  evidence ;  and  in  any  case  where  the  alteration  is  material, 
the  time  when  it  was  made  is  a  question  of  fact  to  be  passed  upon 
by  the  jury,  and  one  that  naturally  calls  for  some  explanation 
on  the  part  of  the  person  offering  the  instrument  in  evidence.^^ 
The  refusal  to  produce  a  deed  alleged  to  contain  a  clause  fraudu- 
lently inserted,  which  did  not  appear  in  the  mortgage  as  recorded 
in  the  clerk's  office,  is  a  badge  of  fraud  from  which  the  jury  may 
pronounce  against  the  claim  under  that  clause.^^  In  the  case  of 
a  will,  which  bears  on  its  face  evidence  of  having  been  interlined 
and  added  to  and  altered  in  a  material  part,  the  whole  being  in 
the  handwriting  of  the  testator,  the  party  producing  and  claim- 
ing under  it  is  bound  to  explain  the  suspicious  circumstances. 
Evidence  being  given  on  both  sides,  the  question  whether  the  de- 
ceased executed  that  will,  is  one  of  fact,  unembarrassed  by  any 
presumption  one  way  or  the  other. ^^  The  act  of  an  officer  certify- 
ing a  judgment  and  noting  erasures,  alterations  and  interlinea- 
tions, will  be  presumed  to  have  been  made  at  the  time  the  roll  was 
authenticated,  truly  and  in  good  faith.^^ 

In  respect  to  bills  and  notes,  it  will  not  be  presumed  that  an 
alteration  by  erasure  or  by  interlineation,  apparent  on  the  face  of 
the  paper,  which  tends  to  diminish  the  rights  of  the  party  to  whom 
it  was  given,  was  made  after  the  paper  was  executed  f  and  it  has 
l)een  frequently  held,  though  the  authorities  are  not  harmonious, 
that  no  such  presumption  will  be  raised  even  where  the  alteration 

•"Doe  V.  Catamore.  5  En":.  Law  and  ^^^  Jackson  v.  Osborn,  2  Wend     (N 

Kq.     349;     Farnsworth    v.     Sharp.    4  Y. )   555;  Herrick  v.  Malin,  22  Wend. 

Sneed    (Tenn.).   oo;    Stoner   v.    Ellis.  (X.  Y.)   388 

5    Ind      152;     Bailey    v.    Taylor,     11  "  Hager  v.    Hager,    38    Barb.     (N 

Conn.  531,  534;  Crabtree  V.  Clark,  20  Y.)92. 

^^npfj-      ^,      .^         ,,,  "Van     Buren     v.     Cockburn.      14 

"Ely  V.  Ely,  6  Gray  (Mass.),  439;       Barb.    (X.  Y.)    118 
Jordan  v.  Stewart,  23  Penn.  St.  244.  ""  Lozier  v.  Westcott.  26  N.  Y.  149. 

"Bailey  v.  Taylor,  11  Conn.  531. 


206  Evidence.  [Obap.  '^ 

would  enure  to  the  advantage  of  the  payee  or  holder."  Clearly, 
not  where  the  payee  only  fills  in  a  blank  in  the  note.^^  The 
English  rule  calls  for  explanation  of  the  alteration  of  the  bill  or 
note  from  the  party  producing  it.^^  An  alteration  of  a  note  so  as  to 
make  the  interest  payable  semi-annually,  made  by  the  maker  and 
payee  after  its  delivery,  discharges  the  surety.^''  Where  an  in- 
strument is  altered  without  the  consent  of  all  parties  to  it  this  is 
a  spoliation  and  every  presumption  will  be  indulged  against  the 
spoliator.  ^^ 

Sec.  60.  Damages. 

From  proof  of  an  injury  to  a  right  some  damage  is  presumed 
to  sustain  the  right,^^  but  if  more  than  nominal  damages  ar& 
claimed,  they  must  be  proved  and  cannot  be  presumed. ^^  If  a  num- 
ber of  cattle  belonging  to  different  persons  break  into  another's 
enclosure  and  do  damage,  each,  in  the  absence  of  any  proof  to  the 
contrary,  will  be  presumed  to  have  done  an  equal  damage.^^ 

Sec.  61.  Identity  of  Name. 

Identity  of  name  is  prima  facie  evidence  of  identity  of  person,* 
where  there  are  no  particular  circumstances  tending  to  raise  a 
question  as  to  the  party  being  the  same,^  and  although  the  pre- 

"  Agawani   Bank  v.   Sears,  4  Gray  '-  Tedder  v.  Stiles,  16  Ga.  2. 

(Mass.),  95.  "  Fasseler    v.    Lane,    48    Penn.    St. 

^*  Kitchen   v.    Place,    41    Barb.     (N.  407;  Farley  v.  Vanmickle,  19  La.  An. 

Y.)   465.  U. 

'=  Knight  V.  Clements,  8  Ad.  &  El.  -*  Partenheimer    v.   Van    Orden,    20 

215;    Henman    v.   Dickinson,   5    Bing,  Barb.   (N.  Y. )  479. 

183;    Clifford  v.   Parker,   2   M.   &   G.  ,    ^  The  name  of  a  party  in  a  record. 

909.  of    judgment   offered    being    identical 

^^  Dewey  v.  Reed,  40  Barb.    (N.  Y. )  with  that  of  a  party  before  the  court 

16.  is    prima   facie    proof    of    identity   of 

^'  Where   the  maker  of  a  note  de-  person.  Ritchie      v.       Carpenter,      2 

stroys   it   some  time  after   the   death  Wash.    512,   28    P.    380;    20   Am.    St. 

of  the  payee,  which  occurred  in  1882,  Rep.  877.     See  also  Campbell  v.  Wal- 

and  suit  was  brought  upon  the  note  lace,  46   Mich.   320;   Gitt  v.   Watson, 

in    1900  and   there   is  no  evidence   to  18  Mo.  274;  Gates  v.  Loftus,  3  A.  K. 

show   the   date   or   time   of   payment,  ]Mar.    (Ky. )    202.     But  see  Mooers  v. 

the  jury  may  infer  that   it   was   not  Bunker,   29  N.   H.   420;    Reynolds   v. 

barred  Isy  the  statute  of  limitations,  Staines,  2  C.  &  K.  745;   Murietta  v. 

and  was  valid  and  enforceable  where  Wolfhagen,  2  id.  744. 

suit  was  brought  within  two  years  of  -  Roden    v.     Ryde,    4    Q.    B.    626; 

the  appointment  of  an  administrator.  Hamber    v.    Roberts,    7    C.    B.    861;. 

This  is  an  application  of  the  doctrine  Barker     v.     Stead,     3     C.     B.     946; 

"  Contra   spoliatorem    omnia    praesu-  Whitelocke  v.   Musgrove,    1   C.    &  M. 

muntur."  Sullivan  v.  Sullivan,  188  511;  Jones  v.  Jones,  9  M.  &  W.  75. 
Mass.  380,  74  N.  E.  608. 


Sec.  62.] 


Presumptions.  207 


.umption  is  rebuttable,  it  is,  sufficient  to  shift  the  burden  of  proof 
to  the  other  side.^    Thus,  it  has  been  held  that  two  certificates  for 
vacant  land  granted  in  the  same  name  will  be  presumed  to  have 
been  granted  to  the  same  person.^    But,  if  required,  some  evidence 
beyond  that  of  mere  identity  of  name  must  be  given  that  the  plain- 
tiff is  the  same  person  who  is  entitled  to  an  interest  m  real  estate. 
When  the  names  of  the  grantee  in  one  conveyance  and  the  grantor 
in  a  later  conveyance  of  the  same  land  are  the  same,  their  identity  is 
prinm  facie  sufficiently  proved,  although  the  residences  are  differ- 
ent '    But  this  presumption  of  identity  of  person  from  identity  ot 
name  may  be  overcome  by  proof  that.there  is  more  than  one  person 
by  that  name  or  that  the  name  is  a  common  one.      Of  course  the 
strength  of  this  presumption  is  increased  when  there  is  not  only 
identity  of  name,  but  also  of  profession  and  place  of  abode  or  of 
age «    Mere  similarity  of  name  is  no  proof  of  identity  of  person. 
Thus  the  question  whether  R.  P.  O'Xeil,  who  executed  the  deed, 
and  Rev   P    O'Neil,  who  owned  the  land,  were  the  same  person, 
^as  held  to  have  been  erroneously  submitted  to  the  ]ury  without 
some  proof  of  identity  beyond  that  named,^  and  it  cannot  be  pre. 
sumed  that  ^'  John  O'Shea,"  named  in  a  land  patent,  is  the  same 
person  as  ''  John  O.  Shea,"  named  in  a  subsequent  judgment  con- 

■'^^  1  J.      10 

cerning  the  same  property. 

Sec.  62.  Abandonment. 

An  abandonment  of  a  right  is  never  presumed,^^  but  must  be 
proved  as  a  fact,^^  except  where  the  right  has  been  permitted  to  lie 
dormant,  without  assertion,  for  more  than  twenty  years. 

''^^l^\^'  HolT:l3-ila'-520;  3  So.       whon.  is  Michael  and  the  other  Pat- 

321,  3  Am.  St    Rep.  768  "'?Sn  ith'v    Henderson,   9   M.   &   W. 

*  Gates  V.  Loftus,  ante.  798      Russell   v.     Smith,     9    id.    818; 

^^,  34'S.^  W."l099^  56   im'.   s'       ';^^urford   v.   McCue,   53   Penn.    St. 
^^P-  *^9-  T  „^i.       Tn    Mc-        "^''' Clary  v.  O'Shea,  72  Minn.  105,  71 

Ifi  fa"Af  SLAn?t|^|r  CO      >   Nev.   ..  S.a.  .J^,o., 

don   and   the  deed  is  to  Patrick  Mi  -■*    ^"*°' 

chael  Dundon,  Jr.,  it  will  not  be  pre-  Tex-  GO^;^  ^  2  La.  An.  957. 

sumed  that  the  same  persan  is  meant  Green  v .  ^  o  Dene 

in  both   instruments,  especially  when  Geiger  v.  Miller, 


208  Evidence.  [Chap.  3 

Sec.  63.  Presumption  arising  from  Possession  of  Real  Estate. 

As  men  usually  own  the  property  they  possess,  mere  proof  of 
possession  is  jyrima  facie  proof  of  ownership/  and  this  applies  both 
to  personal  and  real  estate,  and  possession  of  the  latter  raises  a 
presumption  of  a  seisin  in  fee,^  and  in  the  case  of  a  mere  trespasser 
this  presumption  is  conclusive.^  And  in  ejectment,  although  it  is 
an  inflexible  rule  that  the  plaintiff  must  recover  by  the  strength  of 
his  own  superior  title,  yet  proof  of  possession  of  the  land,  for 
however  short  a  time,  is  prima  facie  evidence  of  title  against  a 
wrong-doer,*  provided  the  plaintiff  had  possession  at  the  very  time 
when  the  disturbance  occurred,  and  that  he  has  suffered  a  real  dis- 
turbance either  in  fact  or  at  law.^  In  some  cases,  it  is  held  that  it 
will  be  presumed  that  the  fee  simple  of  the  land  will  carry  with  it 
the  minerals,®  but  this  presumption  is  not  universal,  because,  in 
mining  districts,  the  right  to  the  minerals  and  the  fee  simple  to 
the  soil  are  in  different  persons;  consequently  this  presumption 
may  be  rebutted  by  showing  either  an  absence  of  enjoyment  of  the 
minerals  by  the  owner  of  the  soil,  or  an  actual  use  of  the  minerals 
by  a  stranger.^  The  value  of  the  presumption  of  title  arising 
from  possession,  depends  largely  on  proof  of  uninternipted  en- 

»Webb  V.  Fox.  7  T.  R.  397;  Sulton  "Lane  v.  Gould.  10  Barb.    (X.  Y.) 

-V.  Buck,  2  Taunt.  302;  Robertson  v.  254;   Millard  v.  Richard,   13  La.  An. 

French,  4  East,  130.  572;  Owen  v.  Fowler,  24  Cal.   192. 

'Jayne  v.  Price,  5  Taunt,  326;  Doe  Thus,   in  an    English   case.   Doe  v. 

V.  Coiilthred,  7  Ad.  &  El.  239;  Doe  v.  Coake,  7  Bing.  340,  the  lessor  of  the 

Penfield,  8  C.  &  P.  537.  plaintiff  proved   that  he  had  former- 

3  Elliott  V.  Kemp,  7  M.  &  W.  312.  ly   held    possession    for    over   twenty- 

*  Hoey  V.  Furman,  1  Penn.  St.  295 ;  three  years,  and  during  that  time  had 

Asher  v.  Whitelock,  L.  R.  1  Q.  B.   1 ;  received  and   increased  the  rent,  and 

Doe  V.  Dyehall,  3  C.  &  P.  610;  Hutch-  it  was  held  that  the  defendant  could 

inson  v.   Perley,  4   Cal.   93.      But  the  not  rebut  the  presumption  of  a  seisin 

possession  must   be    actual.    Bord  v.  in  fee  arising  from  these  unequivocal 

Rollings.   30   Cal.   408,    and  must   be  acts   of  ownership,   by   showing   that 

clearly  defined  so  as  to  give  the  pos-  he,  himself,  had  subsequently  been  in 

sessor  exclusive  possession.     A  mere  possession    for    a    period    less    than 

scrambling     possession    is    not    suffi-  twenty  years,  for  the  presumption  be- 

cient.     Page  v.  O'Brien,  36  Cal.  559.  ing  thus   met   by  a   presumption,  the 

The  rule  may  be  said  to  be   that  a  defendant   was   bound  to  establish   a 

prior  possession   of   less  than  twenty  title   of   a   higher   description   or   the 

years    will    prevail    against    a    subse-  plaintiff's  title  must  prevail, 

quent  possession  for  less  than  twenty  «  Hodkinson  v.  Fletcher,  3  Doug.  31. 

vears.     Crockett  v.  Morrison,  11  Mo.  So  also  as  to  the    subjacent    strata. 

3;    Smoat  v.   Lecolt,    1    Stew.    (Ala.)  Keyse  v.     Powell,    2    E.    &   B.    132; 

590;    Den  v.   Sinnickson,   9   X.   J.   L.  Smith  v.  Lloyd,  9  Exch.  562. 

149;  Jackson  v.  Harder,  4  John.    (N.  ''Rome  v.  Grenfel,  Ry.   &  M.  396; 

Y.)  202;  Watkins  v.  VVoolfalk,  5  Ga.  Rome  v.  Brenton,  8  B.  &  C.  737. 
261. 


Sec.  64.]  Peesumptions.  209 

joyment  for  a  long  time,  and  in  one  case  eight  years,^  and  in  an- 
other seven  years^  were  held  sufficient.  Where,  however,  the  plain- 
tiff relies  upon  a  title  by  adverse  possession,  nothing  short  of  an  , 
uninterrupted  adverse  occupancy  for  the  entire  statutory  period 
will  suffice  ;^"  but  when,  as  he  may  do,  he  rests  his  case  upon  the 
common  law  presumption,  or  a  lost  grant,  a  possession  for  a  period 
less  than  that  fixed  by  statute  will,  when  coupled  with  other  cir- 
cumstances, warrant  a  verdict  in  his  favor.^^  And,  generally, 
where  rights  have  been  peaceably  exercised  in  a  particular  man- 
ner for  a  long  time,  it  is  only  reasonable  to  presume  that  they  had 
a  legal  origin. ^^  Evidence  that  certain  persons  occupied  as  tenants 
of  a  town  is  evidence  of  possession  in  the  town  on  which  a  claim  of 
title  by  adverse  possession  may  be  founded.^^ 

In  an  action  for  an  injury  to  a  reversion,  proof  of  a  receipt  of 
the  rent  of  the  premises  by  the  plaintiff,  will,  unless  the  annual 
sum  is  so  small  as  to  raise  the  presumption  that  it  is  a  mere  quit 
rent,  be  sufficient  evidence  of  his  title  to  the  reversion,  except  as 
against  the  real  owner  and  those  claiming  under  him.^^  There  is 
a  presumption  in  favor  of  the  holder  of  the  record  legal  title 
which  must  be  overcome  by  a  clear  preponderance  of  evidence,^^ 
but  no  presumption  arises  on  the  execution  of  a  mortgage  that  the 
mortgagor  owns  the  property  therein  described.  ^^ 

Sec.  64.  Presumption  of  Lost  Grant.    Adverse  Possession. 

Aft^r  peaceable  and  uninterrupted  adverse  possesion  of  land 
for  the  period  provided  by  statute  for  acquiring  the  title  to  land  by 
adverse  possession,  a  grant  will  generally  be  presumed.^  But  in 
such  cases  mere  length  of  possession,  however  great,  unless  the  pos- 
session is  for  a  period  as  long  as  that  required  by  the  statute  to 
constitute  a  bar,  will  not  be  sufficient.    But  where  there  has  been  a 

"Jackson   v.   Harder,   4   John.    (N.  "Dainty  v.   Bracklehurst,   3   Exch. 

Y.)    202.  207;     Doe    v.     Johnson,    Gaw.     173; 

» Watkins  v.  Woolfalks,  5  Ga.  261.  Reynolds    v.    RejTiolds,     12     Ir.     Eq. 

"Lame  v.  Carpenter,  G  Exch.   825;  172. 

Eldredge  v.  Knott,  1  Cowp.  214.  ^^  Drees  v.  Drees   (Iowa,  1905),  104 

"  Hunmer  v.  Chance.  4  DeG.,  J.  &  N.  W.  479. 

^.   G25;    Bright   v.   Walker,    1   C,  M.  '« Svck  v.     Bossingham,     120   Iowa, 

&  R.  222.  363.  94  X.  W.  920. 

^Rex  V.   Powell,    3    E.  &  B.   377;  '  Rooker    v.    Perkins,    14    Wis.    79; 

Mavor   of   Hull   v.   Horner,    1    Camp.  Brundt   v.    Ogden,    1   John.    (N.   Y.) 

110.  156. 

^^Murphv  V.  Comm,  187  Mass.  361, 
73  N.  E.  524. 

14 


210  Evidence.  [Chap.  3 

long  and  peaceahh  possession  of  kind  consistent  with  the  grant  to 
he  presumed,  and  there  are  other  circumstances  which  male  it  rea- 
sonable to  believe  that  such  grant  was  actually  made,  but  through 
great  lapse  of  time  or  other  eireunistauces  the  evidence  of  such 
grant  is  probably  lost  or  destroyed,  then  the  length  of  possession 
and  the  auxiliary  circumstances  should  be  allowed  to  go  to  the 
jury,  and  they  should  be  permitted  to  pass  upon  the  question 
whether  a  grant  has  been  made  or  not."  But  such  presumption 
may  be  repelled  by  parol  proof  where  the  presumption  is  raised 
by  parol  evidence,^  or  by  the  production  or  proof  of  the  contents 
of  an  instrument  under  which  the  possession  was  held,  which  re- 
pels the  presumption  of  a  grant.^  In  order  to  raise  the  presump- 
tion of  a  grant  from  long  possession,  it  is  not  necessary  that  the 
possession  should  have  always  been  in  the  presumptive  grantee.* 
In  order  to  warrant  a  jury  in  presuming  a  grant,  it  is  not  neces- 
sary that  they  should  find  that  a  deed  or  grant  has  been  actually 
executed,  but  without  really  believing  that  a  grant  has  been  made, 
they  may  presume  its  existence  for  the  purpose  of  quieting  title. 
Such  presumptions,  however,  of  conveyance  of  corporeal  hered- 
itaments are  seldom  made,  except  when  a  title  has  been  shown  by 
the  party  who  calls  for  the  presumption,  wliich  is  good  in  substance, 
but  is  lacking  in  some  collateral  matter  necessary  to  make  it  com- 
plete in  form,^  or  where  the  law  has  vested  the  title  in  him  by 
'adverse  possession.  While  the  presumption  of  a  gi-ant  from  the 
State  will  not  be  made  from  a  simple  occupancy  sufficient  to  ac- 
quire a  title  by  adverse  enjoyment,  as  against  an  individual,  yet  it 
seems  now  to  be  well  settled  that,  ivhere  the  adverse  claim-  could 
have  had  a  legal  commencement,  a  legal  commencement  may  be 
presumed  after  long-continued  peaceable,  enjoyment,  accompanied 
l3y  the  usual  acts  of  ownership.^     Adverse  possession,  to  be  effec- 

=  To\vn?encl  v.  Downer,  32  Vt.  183.  *  :Mayor     of     Hull     v.     Corner,     1 

'English  V.  Reeister.  7  Ga.  387.  Cowp.   102:    R.  v.   Brown,   cited   1   id. 

*  Xieto   V.    Carpenter,   21    Cal.    45.5.  110:   Mather  v.  Trinity  Church,  3  S. 

See.  also,  Farrar  v.  [Merrill,  1  Me.  17;  &   R.    (Penn.)    50n.       In    McCarty  v. 

Hurst   V.    McNeil,    1    Wash.     (U.    S.)  McCarty.  2  Strohh.   (S.  C.)   0.  it  was 

70:   JeflFerson  Co.  v.  Ferguson,  13  111.  held  that,  though  an  act  of  the  legis- 

33.  lature  after  twenty  years'   possession 

"Glass  V.  Gilbert,  58  Penn.  St.  2G6.  and   use   may   be   presumed   yet   that 

"Eldridge  v.   Knott,     1     Cow.   214;  the   principle    is    exclusively   confined 

Deeble  V.  Linehan,  12  Ir.  L.  R.,  X.  S.  to    cases    in    which     the    legislature 

1:      Williams     v.     Donell,     2     Head.  might   act,   and   cannot  apply   ichere, 

(Tenn. )   695.  from    the   constitution    or    a   sort   of 

'Doe  V.  Cooke,  6  Ring.  179.  common  law  of  the  State,  the  It ^islor- 


Sec.  64.]  Presumptions. 


211 


tive,   must  be,    (1)   hostile  or  adverse,   (2)    actual,    (3)    visible, 
notorious,  and  exclusive;   (4)  continuous,  (5)  under  a  claim  of 
title.^     Grants  of  charters  and  acts  of  the  legislature  even  have 
thus  been  presumed  and  found  by  juries.^''    And  upon  the  same 
principle  the  long  enjoyment  of  duties,  tolls,  etc.,  if  the  nature  of 
the  case  admits  of  it,  has  been  held  to  warrant  the  presumption 
of  any  facts  necessary  to  give  them  validity.^^     And  it  has  even 
been  held  that  a  series  of  acts  of  ownership  exercised  by  an  ad- 
joining owner  upon  the  seashore  for  a  long  period  of  time  afford 
sufficient  evidence  for  a  jury  to  presume  a  grant  from  the  sovereign 
to  one  of  his  ancestors.^^    A  right  by  grant  to  easements  and  incor- 
poreal hereditaments  may  be  presumed  from  an  adverse  user  for 
the  period  fixed  by  statute  for  the  acquisition  of  a  title  to  land 
by  adverse  user.^^    Thus,  by  such  adverse  user  the  right  to  a  pri- 
vate way  is  acquired,  the  presumption  being  from  such  adverse 
and  undisturbed  user  that  the  right  passed  to  the  person  using  it 
by  a  regular  grant,"  and  the  same  rule  applies  to  all  species  of 
easements  and  incorporeal  rights  to  which  the  Statute  of  Limita- 
tions does  not  apply.    But  such  a  presumption  does  not  necesgarily 
arise  from  mere  length  of  possession  in  reference  to  corporeal  sub- 
jects, as  lands  and  tenements,  because  in  reference  to  them  the 
Statute  of  Limitations  has  made  all  the  provisions  which  the  law 
deems  necessary  for  quieting  the  title.     But,  as  has  already  been 
stated,  length  of  possession  may,  in.  connection,  with  other  circum- 
stances, be  proved  to  perfect  the  evidence  of  title  to  lands,  and  the 
longer  the  possession,  the  stronger  is  the  presumption}'"     But  a 

ture  never  has  acted  and  never  will  "  Beaufort  v.  Mayor  of  Swansea,  3 

^'^'-      ,  Kxch.   413;   Malcomsoji    v.    O'Dea,    10 

Roby   V.    Calomet.   &   C.   Canal    &  H.   L.   Cas.   593:   Shenhard  v.   Pavne 

Dock  Co.,  211  111.  173,  71  N.  E.  822.  3  X.  R.  .580;   Pelham  v.  Pickers<^iil    1 

^^  Mayor   of  Hull   v.   Horner,   aiite ;  T.  R.  66.     In  Arclier  v.  Sadler    2  H 

ISIcCarty  v.  McCarty,  ante:  Palmer  v.  &   M.    (Va.)    370.  a   quiet   possession 

Hicks.   6   John.    (N.   Y.)    33:    Grimes  of  sixtv  years;   in   Hunks  v.  Tucker 

V.    Bastrop,   26    Tex.    310;    Taylor   v.  Tayl.  (X.  C.)   157,  of  forty  years,  and 

Uatkins.     26     id.      688;     Walker    v.  in    Allston    v.    Saunders,  '  1    Bay    (S. 

Hanks,    27    id.     535;     Lopez    v.     An-  C),    26.    forty-seven    years    was    held 

drews,  3   M.  &  R.   329  a;  Att'y-Gen.  sufficient   to   raise   a  "presumption   of 

V-   Emfeline   Hospital,    17    Beav.    366;  such  a  grant. 
Devine  v.  Wilson,  10  ^lo.  P.  C.  527.  '^  Hill    v.   Crosby,   2   Pick     (Mass  ) 

"Mayor  of  Exeter  v.  Warren,  1  Q.  466:  Livett  v.  Wilson,  3  Bin"-.  115 
B.     801:   Gaun    y.     Free    Fishers    of  "Com.    y.    Low.    3    Pick    ""(Mass  ) 

Whitstoph.  20  C.  B..  X.  S.   1;     Mills  408;   Wright  v.   Freeman,  5   H    &  j 

V.   ]\Liyor   of   Colchester.   L.   R.,   2   C.  (Md.)    497. 

P.   476;   Bryant  y.   Foot.   L.   R.   2   Q.  '^  GorLD,  J.,  in  Sumner  v.  Child,  2 

B.  161;   Lawrence  y.  Hitch,  3  id.  352.  Conn.  629. 


212  Evidence.  [Chap.  3 

possession  of  lands  for  a  less  time  than  that  fixed  by  the  statute 
for  quieting  the  title  will  not  raise  a  presumption  of  a  grant,  be- 
cause it  would  amount  to  an  evasion  of  the  statute.^^  But  when  an 
actual  transfer  of  title  is  to  be  made  out,  of  which  the  deed  or 
other  documentary  evidence  has  been  lost,  is  relied  upon,  and  is 
to  be  made  out  either  in  whole  or  in  part  by  secondary  evidence, 
length  of  possession,  like  any  other  circumstantial  fact,  is  admis- 
sible as  corroborative  evidence  of  such  transfer,  and  "is  no  more 
material  to  the  main  fact  than  any  other  supposable  circumstance ; 
and  possession  for  a  shorter  time  than  that  prescribed  in  the  Stat- 
ute of  Limitations  is  admissible,  although,  as  previously  stated, 
the  longer  the  possesion,  the  stronger  is  the  presumption  arising 
from  that  fact."  "But,"  says  Gould,  J.,  in  the  case  last  cited,  ^ 
"where  length  of  time  is  relied  upon  as  a  presumptive  bar,  that  is,  '♦ 
where  mere  length  of  possession  is  the  only  fact  required  to  be 
proved,  and  is  of  itself  the  conclusive  fact  from  which  a  title  is  to 
be  peremptorily  presumed,  upon  the  principle  of  quieting  posses- 
sion, and  whether  an  original  title  is  actually  believed  to  have 
existed  or  not,  the  subject  in  controversy  always  is,  and  must  be, 
an  incorporeal  right. "^^ 

From  a  long-continued  possession  a  conveyance  to  the  occupant 
of  land  may  be  presumed,^^  and  that  all  acts  necessary  to  give  it 
effect  were  done.^*^  Especially  is  this  the  ca^e  where  the  occupant 
exercised  all  the  acts  of  ownership,  paid  the  taxes,  etc.  ^^  Where  there 
has  been  long  possession  of  land  under  a  deed  by  one  who  executes 
it  as  executor,  a  will  will  be  presumed  to  have  existed  in  order 
to  confirm  the  title  of  the  grantee  ;^^  and  where  a  sale  under  a 
statute  had  been  made  by  a  trustee,  and  the  gi-antee  had  been  in 
possession  for  fifty  years,  it  was  held  that  the  jury  might  presume 
that  the  trustee  conveyed  with  license.^^  So,  where  there  had  been 
a  similar  possession  under  a  deed  executed  by  an  agent,  it  was  pre- 

"  Terrill   v.    Herron,    4   J.   J.   Mar.  separate  possession   of  lands  held   in 

(Kv. )    516.                      '  common,  raises  a  presumption  that  a 

"  GoiXD    J  .  in  Sumner  v.  Child,  2  partition  deed   was   executed.        Hep- 
Conn    629  burn  v.  Auld.  5  Cr.   (U.  S.)   262. 

"Grav    v     Gardner,    3    Mass.    399;  =»  Brattle    Square    Church    v.    Bul- 

Bunce  v    Walcott.  2  Conn.  27:     Mc-  lard,  2  Met.    (Mass.)    263;  Valentine 

Donald  V.   McCall,   10  John.    (N.  Y.)  v.  Piper,  22  Pick.   (Mass.)   85. 

3^7  =^  Cheney    v.    Watkins,    1    H.    &    J. 

'^McNair  v.  Hunt,  5  Mo.  300.     In  (Md.)    527. 

this  case  30  years.     Newman  v.  Stud-  "  IMaverick  v.  Austin,  1  Bailey   ( b. 

ley,  5  id.  291.     In  this  case  26  years.  C),  59. 

Thompson  v.  Carr,  5  N.  H.  510.       A  "Thompson  v.  Carr,  5  N.  H.  510. 


Sec.  64.] 


Presumptions. 


213 


sumed  that  the  agent  was  authorized  to  execute  the  deed.^-*  So, 
where  a  deed  was  executed  of  Lands  sold  for  taxes,  it  was  pre- 
sumed that  the  requisite  formalities  were  observed  to  give  validity 
to  the  sale.^^  But  this  is  not  the  case  unless  there  has  been  long 
possession  under  the  deed,  and,  where  twentj-three  years  after  the 
execution  of  a  collector's  deed,  the  grantee  took  possession  for  jive 
years,  it  was  held  that  no  presumption  as  to  the  validity  of  the  deed 
could  be  raised  therefrom.'^  This  presumption  is  made  between 
private  individuals,  in  favor  of  a  party  who  has  proved  a  rigiit 
to  the  beneficial  ownership  of  property,  and  wliose  possession  has 
been  consistent  with  the  existence  of  such  a  conveyance  as  is  to  he 
presumed,  especially  ivhere  his  possession  would  have  been  unlaw- 
ful except  for  such  a  conveyance}''  But  where  the  original  pos- 
session of  the  land  may  be  accounted  for  without  there  having  been 
a  conveyance,  it  is  proper  for  the  jury  to  presume  a  conveyance 
or  not,  according  to  their  belief  f  and  it  seems  that  a  conveyance 
may  be  presumed,  even  though  by  law  deeds  are  required  to  be  re- 
corded, and  the  records  afford  no  evidence  of  such  a  deed.'^ 


''Jarboe    v.    McAtee,    7    B.    Mon. 
(Ky.)   279. 

'*  Cuttle  V.  Brockway,  24  Penn.  St. 
145. 

'"  Richardson  v.  Dorr,  5  Vt.  9. 

"Hammond  v.  Cooke,  6  Bing.   180. 

""  Fenwick  y.  Reed,  5  B.  &  A.  233. 
^^In  Beauland  v.  Hurst,  1  Price, 
47.5,  there  was  an  act  for  registering 
deeds  and  conveyances  in  the  West 
Riding  of  Yorkshire,  on  which  act 
the  question  arose,  dechiring  that 
they  shall  be  recorded,  in  order  to 
protect  the  grantee  against  subse- 
quent bona  fide  sales  and  mortgages. 
It  is  nearly  the  same  as  our  general 
registry  acts  in  the  United  States. 
In  that  case,  a  grant  of  coal  in  the 
West  Riding  of  Yorkshire  was 
sought  to  be  presumed  from  circum- 
stances. This  was  resisted  on  the 
ground  that  the  registry  alone  should 
speak;  and  there  was  no  registry. 
The  omission  was  relied  on  as  ef- 
fectually repelling  all  presumption 
in  the  case.  The  point  does  not  ap- 
pear to  have  been  decided.  But  the 
question  at  the  trial  was  left  to  the 
jury  by  Bailey.  J.,  and  on  the  argu- 
ment at  bar.  Rex  v.  Long  Buckby 
(7  East,  45)  was  cited,  and  appears 
to   be    conclusive,    that    such    a    case 


presents  as  fair  a  subject  of  pre- 
sumption as  any  other.  In  the  lat- 
ter case  an  indenture  of  apprentice- 
ship had  been  lost,  and  was  to  be 
proved  by  parol;  but  there  was  no 
evidence  that  it  had  ever  been 
stamped,  and  no  registry  of  that 
fact  at  the  stamp-office,'  where  it 
must  have  appeared,  if  there  had 
been  no  irregularity.  But  after 
nearly  twenty  years,  during  which 
the  indentures  had  been  acted  upon 
as  valid,  the  court  held  that  the  evi- 
dence of  non-registry  was  not  suffi- 
cient per  se  to  repel  the  presumption, 
but  they  would  rather  suppose  that 
the  paper  had  been  stamped,  and  that 
the  proper  office  had  omitted  the  reg- 
istry by  mistake.  This  was  a  case 
where,  without  a  stamp,  the  inden- 
tures would  have  been  a  nullity  to  all 
intents,  and  where,  in  the  reoailar 
course  of  things,  there  must  "have 
been  a  registry.  It  Avas  surely  much 
stronger  against  the  presumption 
than  the  omission  to  register  a  deed 
of  conveyance.  The  latter  was  valid 
as  against  the  party  without  regis- 
try; and  the  grantee  being  in  posses- 
sion, they  would  be  valid  against  all 
the  world,  purchasers  and  mort- 
included.       Gouverneur       v. 


214  Evidence.  [^"^I'^^P-  ^ 

The  presumption  of  a  conveyance,  as  well  that  all  necessary 
formalities  were  observed  in  making  it,  may  be  rebutted  by  proof 
tending  to  a  contrary  conclusion,^*'  and,  M'hile  ancient  deeds  under 
which  the  grantee  has  entered  into  possession  are  to  be  upheld, 
although  defective  in  form  or  execution,^'^  yet  a  tiile  cannot  be 
presumed  to  have  been  perfected  where  deeds  showing  a  defective 
title  are  produced^^  when  the  origin  of  the  possession  is  accounted 
for  without  the  aid  of  a  grant,  or  conveyance,  and  it  is  consistent 
with  the  fact  of  there  having  been  no  conveyance,  stronger  evidence 
than  mere  possession  is  required  to  warrant  a  jury  in  finding  that 
a  conveyance  has  been  made,^^  and  this  rule  prevails  where  a 
right  is  claimed  from  mere  user,  without  any  trace  of  the  com- 
mencement of  it,  the  title  being  referable  to  prescription  rather 
than  a  grant.^* 

A  presumption  of  a  grant,  or  conveyance,  can  only  arise  where 
there  has  been  an  exclusive  occupancy  as  owner;  and  where  the 
occupancy  is  casual  and  general  and  does  not  exclude  the  real 
owner,  it  cannot  be  raised,^^  nor  can  it  be  raised  where  there  are 
circumstances'  which  rebut  it,  as  where  the  land  occupied  belongs 
to  the  State,  or  where  the  right  exercised  is  one  which  the  State 

LjTich,  2  Paige  Cli.  (X.  Y.)  300.  301,  possession  is  held  in  South  Carolina 
and  the  cases  there  cited.  Neither  to  raise  the  presumption  of  a  grant, 
are  the  registering  acts  imperative.  Thompson  v.  Peake,  7  Rich.  (S.  C. ) 
nor  is  there,  in  case  of  a  deed,  any  3.53 ;  Kimbrall  v.  Walker,  7  id.  422. 
great  danger  in  omitting  to  register.  The  presumption  of  law  is  founded 
It  is  entirely  optional  with  the  upon  a  fair  presumption  of  fact,  and 
party,  and  if  purchasers  or  mort-  is  frequently  resorted  to  to  supply 
gage€s  are  uninjured  by  lack  of  con-  the  place  of  lost  deeds.  Demeyn  v. 
structive  notice,  none  others  can  com-  I^egg.  IS  Barb.  (X.  Y. )  14;  Simp- 
plain.  Where  notice  alone  is  the  ob-  son  v.  Hyatt,  1  Jones  L.  (X.  C.) 
iect,  it  is  given  by  a  change  of  pos-  518;  Spears  v.  Oakes,  4  Rich.  (S.  C.) 
session  to  the  grantee:  and  an  abso-  347.  Adverse  possession  of  the  land 
lute  deed  may  ordinarily  be  withheld  must  be  shown  before  any  presump- 
from  the  record,  without  any  danger.  tion  will  be  made  in  favor  of  the 
Indeed,  this  is  often  so  in' practice.  claimant.  Wadsworthville  School  v. 
And  it  follows  that  there  is  nothing  Meetze,  4  id.  50.  Permissive  posses- 
in  the  omission  to  register  neces-  sion  will  raise  no  such  presumption, 
sarily  inconsistent  with  the  common  Roxbury  v.  Huston,  37  Me.  42. 
presumption  which  involves  the  pre-  ^"Chiles  v.  Conley,  2  Dana  (Ky.) 
vious  existence  and  loss,  and  may  21 ;  Ladd  v.  Campbell,  32  Penn.  St. 
equally  well  include  the  non-registry.  250. 

The    law    presiunes    a    conveyance  ''  Hill  v.  Lord,  48  Me.  83. 

where  there   has   been   long-continued  ^-  Owings    v.    Xorwood,    2    H.    &    J. 

possession  of   land  under   a  claim  of  (Md. )   96. 

title,   and   the   parties    are   shown   to  ''  Fenwick  v.  Reed,  5  B.  &  Ad.  232 ; 

have    acted    as    though    a    deed    had  Blewitt  v.  Tregonning,  3  id.  544. 
been     given.        Wendel     v.     Moulton,  "  Blewitt  v.  Tregonning,  ante. 

25    N     H.    41.        Over    twentv    years'  ^'  Bethum  v.  Turner,   1   Me.   111. 


Sec.  65.]  Presump 


TIONS.  215 

only  can  grant,^^  nor  where  the  right  exercised  is  a  common  or 
natural  right,"  nor  where  it  appears  that  the  party  might,  if  he 
chose  to  do  so,  produce  the  deed.^^ 

Sec.  65.  Validity  of  Official  Acts. 

Every  officer  acting  under  the  sanction  of  an  oath,  or  in  whom 
the  government  reposes  a  trust,  is  presumed  to  have  done  his  duty 
until  the  contrary  is  proved,^  and  he  is  also  presumed  to  be  com- 
petent to  do  his  duty  as  otherwise  it  is  assumed  he  would  not 
Tiave  undertaken  its  execution.  This  circumstance  may  be  con- 
sidered by  the  court  in  determining  whether  the  witness  may  be 
allowed  to  testify  as  an  expert.^  This  principle  applies  not  only 
to  proceedings  against  an  officer,  but  also  to  an  action  against  the 
Tight  of  an  individual  derived  through  the  act  of  such  officer;^ 
and  a  person  who  alleges  a  breach  of  official  duty  must  show  every 
fact  necessary  to  establish  such  breach.''  This  rule  is  in  accord- 
ance with  and  is  embodied  in  the  maxim,  Ornnia  praesumuntur 
rite  esse  acta,  and  is  regarded  as  one  of  the  most  important  pre- 
sumptions of  the  law.^  When  some  preceding  act  or  some  pre- 
existing fact  is  necessary  to  the  validity  of  an  official  act,  the  pre- 
sumption in  favor  of  the  official  act  is  presumptive  proof  of  such 
preceding  act  or  pre-existing  fact.  Upon  the  other  hand,  the  pre- 
sumption that  an  officer  has  done  his  duty  cannot  sustain  his  ac- 
tion where  the  mandatory  requirements  of  the  law  concerning  the 
record  of  such  action  are  disregarded.  And  in  any  event  such  pre- 
sumption merely  furnishes  a  species  of  evidence  that  may  be  re- 
butted by  proof.^ 

In  obedience  to  this  presumption,  the  burden  is  always  upon  the 

•onr^^^'^f^    ''•     '"'^"t^head.    27     Tex.  43;      Kimball   v.   Lamprey,    19   N.   H 

304;     Ashley  v    Eastern  R.  R.  Co.,  5  409:   Walley   v.   Calloway  Co.    Court, 

Met.   (Mass.)   368.  1   Mo.   447;      Tademeir  v.   Aspinwall 

JFrazier    v.    Brown,    12    Ohio    St.  43     111.     401;      Hancock    v.     Eastern 

38  T,                  a,u                     ^  '^^^'^^    ^^''^-    ^^■'    Co.,    20    Me.    72: 

Browne  v.  Thompson,  4  Q.  B.  543.  Leas    v.    Polk    Copper    Co.,    21    How 

VSennett    v.    State,    17    Tex.    308;  (U.  S)   493 

SY^"1",7-   ^°°^A  ^^  '^•'^"-    <^'-   ^'-^  'State   V.   Main,  69   Conn.    123.   37 

ono'  ,Ml^?   ""•    ^'■^'■'   ^^   P*^°"-   ^^-  -^-  80,  61  Am.  St.  Rep.  30. 

302;   McMahonv    Davison,   12   Minn.  ^Hickman     v.     Boffman,     1     Hard. 

35/;   Guy  v.  Washburn,  23  Cal.   Ill;  (Ky.)    348 

Dawkins  v.  Smith,  1  Hill  ( S.  C. ) ,  Eq.  *  Craig  v.  Adair,  22  Ga    373 

369;      Mercer    v.     Doe.    6     Ind.    80;  =  Taylor  on  Ev.    (7th  ed.)    156 

Llhs    V.    Carr,    1    Bush     (Ky.),  527;  ^  Lauve  v.   Wilson    (La.,   1905),   38 

Jenkins    v.    Parkhill,    25    Ind.    473;  So.  522. 
Schermerhorn    v.    Talman,    14    N.    Y. 


216  Evidence.  [Chap.  3 

party  alleging  it,  to  show  a  neglect  of  official  duty^  or  irregularity 
in  its  performance.^  Thus,  if  a  clerk  of  court  has  no  authority 
to  administer  an  oath  out  of  court,  jurats  attached  to  papers 
signed  by  him  as  clerk  will  be  presumed  to  have  been  verified  in 
court.®  So  where  an  officer  is  required  by  law  to  give  notice  of 
certain  facts,  it  will  be  presumed  that  he  gave  such  notice  ;^°  or 
where  the  law  requires  that  certain  facts  should  be  established  be- 
fore he  does  certain  acts,  or  permits  them  to  be  done,  that  the 
proper  evidence  was  furnished  him  ;^^  or  when  he  does  a  certain  act 
which  would  be  a  violation  of  duty  unless  certain  terms  or  con- 
ditions had  been  performed,  it  will  be  presumed  that  such  con- 
ditions were  performed.^^  But  as  the  power  to  take  oaths  to  affida- 
vits is  not  one  of  the  common  law  powers  of  a  notury  public  and  is 
conferred  only  by  legislative  enactment  the  court  will  not  pre- 
sume in  the  absence  of  evidence  that  a  notary  public  in  another 
State  had  authority  to  take  such  oaths  and  his  authority  must  be 
proved  like  any  other  fact.^^  AYhere  a.n  officer  is  required  by  law 
to  do  certain  acts  before  he  enters  upon  the  discharge  of  his 
duties,  as  to  be  sworn,"  to  give  bonds,  etc.,^^  after  he  has  entered 
upon  the  discharge  of  such  duties,  it  will  be  presumed  not  only 
that  he  was  duly  appointed,  but  also  that  he  had  complied'  with 
all  the  statutory  requirements,^*'  although  there  is  nothing  in  the 
records^^  or  in  the  returns  made  by  him  to  show^  the  fact.^^  But 
this  presumption  will  not  be  permitted  to  sustain  a  vital  jurisdic- 
tional fact.^®  nor  to  sustain  acts  done  by  him  outside  of  or  contrary 

'Dobbs    V.    Justices,    &c.,    17    Ga.  v.   Hussey.   32  Me.   579.   it  was   held 

624.  that,  where  the  law  required   an   of- 

*  Palmer  v.  Boling,  8  Cal.  384;  ficer  serving  a  writ  of  replevin  to 
State  V.  Howard,  10  Iowa,  101:  Rus-  take  a  replevin  bond,  it  will  be  pre- 
sell  V.  Beebe,  Hempst.  (U.  S.  C.  C.)  sunied  that  he  took  such  bond,  al- 
704:  Eoss  V.  Read,  1  Wheat.  (U.  S. )  though  his  return  upon  the  writ  does 
482;      Minter   v.    Cromelin,    18   How.  not   show  the  fact. 

(U.  S.)    87:   United   States  v.  Arred-  "  Teutonia    Loan,   etc.,   Co.   v.   Tur- 

ondo,  6  Pet.   (U.  S.)   691.  rell,  19  Ind.  App.  469,  49  X.  E.  852, 

•  Schermerhorn    v.    Talman,    14    N.       05  Am.  St.  Rep.  419. 

Y.   93.  ^*  Nelson  v.  People,  23  X.  Y.  293. 

"People    V.    Phenix    Bank,    4    Bos.  "  Hutehings    v.    Van   Bokkelin,    34 

(X.  Y.)    363.  Me.  126. 

"Forsaith  v.  Clark,  21  X.  H.  409;  ^"Jones  v.  Minisbach.  26  Tex.  235; 

Hart  V.   Young,   3   J.   J.  Mar.    (Kv.)  MoCutchen  v.  Pratt,  22  Wis.  561. 
408:   Webber    v.    Gottsehalk,    15    La.  "State  v.  Halstead,  18  X.  H.  59. 

An.  370.  ^^  Shorev    v.    Hussey,    ante;      Alle- 

"Titus    v.    Kimbro,    8    Tex.    210;  ghany  v.  Xelson.  25  Penn.  St.  332. 
Lackawanna    Iron    Co.    v.    Fales.    55  '°  Sheldon  v.   Wright,    7   Barb.    (N. 

Penn.   St.   90:   Kilpatrick  v.   Frost,  2  Y. )   39. 
Grant's  Cas.    (Penn.)    168.  In  Shorey 


Sec.  65.]  Pbesumptions.  21T 

to  the  usual  and  well  recognized  functions  and  duties  of  his  office.^* 
But  where  the  act  is  within  the  functions  of  his  office,  it  will  be 
presumed  that  all  preliminary  steps  requisite  to  give  validity  to 
his  acts  had  been  taken/^  unless  upon  the  face  of  a  return  or  re- 
port made  by  him,  or  of  a  record  of  his  proceedings,  there  ia 
something  which  repels  such  a  presumption.^^ 

The  general  rule  universally  applied  in  all  civilized  countries',, 
is  that  acts  which  purport  to  have  been  done  by  public  officers  in 
their  official  capacity,  and  within  the  scope  of  their  duty,  will  be 
presumed  to  have  been  regular  and  in  accordance  with  their  au- 
thority, until  the  contrary  appears.^^  Thus,  if  an  appropriation 
by  the  city  coimcil  was  necessary  as  a  preliminary  to  a  transfer 
of  municipal  funds  from  one  account  to  another,  the  fact  that 
the  transfer  was  officially  made  by  the  custodian  would  give  rise 
to  the  presumption  that  the  necessary  action  of  the  city  council 
had  been  taken,  and  would  cast  the  burden  of  proof  on  the  one 
disputing  the  legality  of  the  transfer.-*  Thus  it  will  be  presumed 
in  the  first  instance  that  municipal  authorities  have  complied 
with  all  the  formalities  of  the  law  in  making  contracts  ;^^  that 
officers  have  complied  with  the  law  in  the  drawing  of  jurors  f^ 
that  an  assessment  was  made  at  the  proper  time  f  that  all  entries, 
including  those  upon  the  margin,  and  cancellations  or  interline- 
ations not  amounting  to  a  mutilation,  in  public  records,  were  reg- 
ularly and  honestly  made.-^  So,  where  the  statiite  requires  that  a 
seal  must  be  attached  to  a  sheriff's  deed  to  make  it  valid,  a  court 
is  precluded  from  presuming  that  it  was  once  sealed,  by  an  answer 
alleging  that  the  sheriff  omitted  the  seal  by  mistake.'^  So,  while 
a  general  return  by  an  officer,  ''executed,"  will  raise  a  presump- 
tion that  the  procis  was  rightly  executed,  yet,  if  the  manner  of 
its  execution  is  set  forth,  its  accuracy  may  be  inquired  into  by  the 
court.^"    But  in  all  cases  where  the  return  of  an  officer  is  attacked, 

^0  Jones  V.  Minisbach,  26  Tex.  235 ;  "  Pine  Tree  Lumber  Co.  v.  City  of 

Houston  V.  Perry,  3  Tex.  390.  Fargo,   12  N.  D.  360,  96  N.  W.  357. 

^^New   Orleans    v.    Halpin,    17    La.  365.  „  ,    .        ,-    t 

An.    185;      Palmer   v.   Boling,   8   Cal.  "New    Orleans    v.    Halpin,    17    La. 

384;   State  v.  Howard.  10  Iowa,  101;  An.  185.  ,     i^  t  im 

Plank  Road  Co.  v.  Bruce,  6  Md.  457.  =  State  v.  Howard,   10  Iowa    101. 

"  I^Ioreau  v.  Branham,  27  Mo.  351 ;  -  Palmer  v.  Bohng,  8  Cal.  484. 

Ward  V    Barrows.  2  Ohio  St.  241.  ''  Rice  v.  Cunningham,  29  Cal.  492. 

"Ross  V.   Reed,    1   Wheat.    (U.   S.)  -  Moreau  v    Branham,  ante 

482;      Dunlop  v.  Munroe,   1   Cr.    (U.  -  Case    v.    Calston,    1    Met.     (Ky-) 

S    C    C)    536;   United   States  v.  Ar-  14o.     In  Drake  v.  Mooney,  31  Vt.  617, 

redondo'  6  Pet.   (U.  S.)    691;   Nimter  where  an  officer  stated  m  his  return 

V   Crommelin,  18  How.  (U.  S.)  87.  upon  an  execution,  that  he  advertised 


218  Evidence.  [Cliap.  3 

the  burden  of  establishing  the  falsity  of  any  of  the  matters  recited 
therein  is  upon  the  party  attacking  it.'^ 

Where  a  return  of  a  survey  of  lands  is  made  by  officers  ap- 
pointed for  that  purpose,  having  every  appearance  of  regularity, 
it  will  be  presumed  to  be  regular  until  the  contrary  is  proved,^^ 
and  cannot  be  questioned  by  a  mere  trespasser  f^  and  if,  in  mak- 
ing a  survey,  they  remove  monuments  established  under  a  fonner 
survey,  it  will  be  presumed  that  the  former  survey  was  wrong  and 
that  the  latter  one  is  right. ^*  Such  surveyor's  knowledge  of  the 
art  of  surveying  need  not  be  shown,  as,  from  the  circumstance  of 
his  appointment,  it  will  be  presumed.^" 

An  agreement  of  counsel  made  in  the  course  of  a  cause  will  be 
presumed  to  have  been  made  on  proper  authority  from  the  client.^* 
So,  that  a  sheriff  selling  horses  on  execution  had  levied  on  them.^^ 
So,  that  overseers  of  the  poor  have  taken  the  proper  steps  for  the 
relief  of  a  pauper  f^  that  a  board  of  supervisors  have  complied 
with  the  law  in  its  proceedings  to  erect  a  new  town  f^  that  officers 
of  government  would  not  twice  survey  and  patent  the  same  lands  ;*° 
that  an  assessed  tax  on  certain  land  was  imposed  u|X)n  the  pos- 
sessor at  the  time,  or  other  person  bound  legally  to  pay ;"  that  a 
district  attorney  has  filed  the  transcript  of  a  conviction  in  the 
Court  of  Exchequer  as  required  by  statute  ;^"  that  a  register's  sale 
was  duly  advertised ;"  that  a  sheriff's  sale  was  according  to  his 
duty  ;*^  that  he  returned  the  execution  in  due  time  ;*^  that  he  gave 

the  property  as  the  law  directs,  and  "Ashe  v.  Lanahan,  5  Ind.  43.5. 

then  proceeded  to  state  the  places  in  "  Elhvorthy  v.  Bird.   1   T.  R.  33. 

which  it  was  advertised,  the  law  re-  '"  Hart  well   v.   Root,    19   John.    (N. 

quiring-  it  to  be  advertised  and   sold  Y. )    345;      Marsh    v.     Lawrence,      4 

in  a  public  place,  it  wa«  held  that  the  Cow.    (X.  Y. )   461. 

court  would  presume  that  the  places  "  Minklaer    v.    Rockfeller,    6    Cow. 

named  were  public  places.  (X.  Y. )  276. 

"Morse  v.  McCall.  13  La.  An.  315.  '"People  v.  Carpenter,  24  N.  Y.  86. 

And  the  same  rule  prevails  where  a  *°  Woodson     v.     Bufford,     7      Mon, 

party   claims   that  an  officer  has  not  (Ky. )    418. 

discharged  his  duty.  State  v.  Met-  "Rex  v.  Inhabitants  of  St.  Law- 
ton,  8  Me.  417.  rence,   4   Doug.   190;   Rex  v.   Inhabit- 

'' Harris  v.   Burham,   1   Wash.    (U.  ants  of  St.  James.  4  Doug.  200. 

S.)   191;  Jewell  v.  Porche,  2  La.  An.  *^  Hilts  v.  Colvin,  14  John.   (X.  Y  ) 

148.  182. 

''Trotter   v.   President,  &c..   9   Mo.  "Hickman     v.     Skinner,     3      Mon 

69.  (Kv.)   211. 

'MVilder  v.  St.  Paul,  12  Minn.  192.  '"Terry  v.   Bleight,   3   Mon.    (Ky.) 

The  presumption  is  of  the  correctness  271. 

of  an  official  survey,  until  .the  same  is  "  Maury  v.  Cooper,  3  J.  J.  Marsh. 

impeached.     Watkins    v.    Havighorst,  (Kv.)    226. 
13  Okl,  128,  74  Pac.  318. 


Sec  66.]  Pbesumptioxs.  219 

due  notice  of  sale  f^  that  he  held  a  ca.  sa.  the  proper  length  of 
time  to  charge  bail.''^  That  a  rector  in  possession  had  read  the 
thirty-nine  articles,  will  be  presumed.*^  So,  that  a  man  acting  in 
a  public  office  has  been  rightfully  appointed,  as  one  acting  as  a 
surrogate.*^  So,  that  entries  made  in  public  books  were  made  by 
the  proper  officers ;  that  officers  issuing  a  land  patent  had  tlie 
requisite  warrant,  plat  and  certificate  ;''^  that  a  government  sur- 
veyor did  his  legal  duty  by  surveying  on  the  ground.^^  A  record 
stated  a  tax  to  have  been  reported  as  assessed  ;  this  will  be  intended 
to  be  the  report  of  the  man  who  was  sheriff  at  the  time  it  was 
assessed,  as  the  duty  belonged  to  him.^^  So,  that  the  auditor  of  the 
exchequer,  on  his  removal,  had  delivered  up  the  rolls.^^  So,  that  a 
constable  delivering  an  execution  for  renewal,  held  it  long  enough 
tb  levy  and  collect  according  to  law  f*  that  a  tax  collector  sold  no 
more  land  than  was  necessary  to  pay  the  tax  f'^  that  the  certificate 
of  appraisal  was  in  the  hands  of  the  sheriff  before  he  set  off  the 
land  under  the  fi.  fa./^  and  that  an  officer  commissioned  by  the 
governor  was  duly  nominated." 

In  one  case,  where  a  sheriff  received  money  on  a  fi.  fa.  after  the 
return  day,  having  received  one  installment  before,  the  court  were 
asked  to  presume  that  he  levied  on  the  debtor's  property  before  the 
return  day,  which  act  alone  could  give  him  power  officially  to  re- 
ceive money  afterwards;  but  they  would  not  presume  that,  saying, 
that  where  a  fact  is  necesary  to  confer  authority,  it  is  not  to  be 
presumed,  although  every  proper  official  step  will  be  presumed 
after  authority  is  shown.^* 

Sec.  66.  Jurisdiction  of  courts.^ 

This  presumption  as  to  the  regularity  of  official  acts,  so  far  as 
the  action  of  courts  of  record  is  concerned,  especially  as  to  their 

"Hanson    v.    Barnes,    3    G.    &    J.  "=  Bush  v.  Williams,  1  Coke,  360. 

<Md.)   359.  ^'Lord  Halifax's  Case,  Bull.  N.  P. 

*^Wheelock  v.  Hall.  3  N.  H.  310.  298. 

*'Monk  V.  Butler,  1  Roll.  83.     And  "Wilson  v.  Gale,  4  Wend.   (N.  Y.) 

see  2  Amst.  372.  623. 

**  Rex  V.  Verelst,  3  Camp.  432.  And  "  Ives  v.  Lvnn.  7  Conn.  505. 

see  Bishop  v.  Cone,  3  X.  H.  513,  and  =^°  Booth  v.  Booth,  7  Conn.  350. 

People   V.   Gilbert,   Anth.    N.    P.    (N.  "Commonwealth  v.  Frazier,  4  Mon. 

Y.)    191.  (Ky.)    513. 

°"  Hickman      v.      Boffman,       Hard.  ^  Rudd   v.   Johnson,   5   Litt.    (Ky. ) 

(Ky.)    362.  19. 

"  Phillips    V.    Robertson,    2    Tenn.  ^  As   to   presumption   of   regularity 

421.  in  judgments,  see  post,  §  §  222-224. 


220  Evidence.  [Chap.  3 

jurisdiction,  where  there  is  nothing  on  the  face  of  the  record  to 
defeat  it,  is  conchisive.^  But  in  a  great  majority  of  instances  it 
may  be  controverted,  and  only  operates  as  prima  facie  proof.  In 
accordance  with  this  rule,  a  court  which  has  taken  jurisdiction 
of  a  case  is  presumed  to  have  had  before  it  proper  evidence  of  the 
facts  necessary  to  give  jurisdiction,  and  evidence  of  the  contrary 
will  not,  after  the  lapse  of  time,  be  admitted.^  It  will  be  pre- 
sumed after  the  lapse  of  a  long  period  of  time  that  a  verdict  and 
judgment  were  founded  upon  proper  proceedings  including  a  dec- 
laration duly  filed  although  no  declaration  or  a  record  of  it  could 
be  found  in  the  clerk's  office.  It  is  far  more  likely  that  the  papers 
were  misplaced  and  that  the  clerk  failed  to  perform  his  duty  than 
that  the  judge  would  have  allowed  a  verdict  and  judgment  with- 
out the  necessary  pleadings  upon  which  to  base  the  same.'*  In  a 
case  of  a  judgment  of  a  court  of  general  jurisdiction  every  fact 
not  negatived  by  the  record  must  be  presumed  to  support  the  judg- 
ment,^ and  this  presumption  of  regiilarity  in  judicial  proceedings 
extends  to  proceedings  under  a  special  statute.^  Where  it  appears 
that  a  party  has  been  convicted  in  a  foreign  jurisdiction,  in  the 
absence  of  the  record  of  the  criminal  proceedings  the  presumption 
is  that  such  proceedings  were  regular  and  within  the  jurisdiction 
of  the  court. ^  But  in  the  case  of  courts  of  limited  jurisdiction, 
where  the  transaction  is  recent,  the  facts  necessary  to  give  it  jur- 
isdiction should  appear.^ 

But  when  the  jurisdiction  of  an  inferior  tribunal  fs  established, 
the  maxim.  Omnia  praesumuntur  rite  esse  acta,  applies  to  all  its 

=>  Peacock  v.  Bell,  1  Wni.  Saiind.  526,  99  N.  W.  320,  statute  providing 
74;  Butcher  v.  Bank  of  Brownsville,  for  establishment  of  heirship. 
2  Kan.  70.  When  an  entry  of  judg-  '  Coveney,  v.  Phiscator,  132  Mich, 
ment  is  so  made  that  its  terms  are  258,  93  N.  W.  619. 
applicable  to  a  case  in  which  the  '  Goulding  v.  Clark,  34  N.  H.  148. 
court  had  no  jurisdiction,  as  well  as  A  board  of  aldermen,  sitting  as  a 
to  one  within  its  jurisdiction,  it  will  court  to  try  charges  against  .a  city- 
be  presumed  that  it  acted  within  its  officer,  is  a  court  of  limited  jurisdic- 
jurisdiction.  Bumpus  v.  Fisher,  21  tion,  and  everything  necessary  to 
Tex.  561.  make  it  such  a  court  must  be  aflirma- 

^  Sprague    v.    Litherberry,    4    Me-  tively    showTi,    and    no    presumption 

Lean     (U.    S. ),   442;      Grimstead    v.  can   be  made   in   its   favor.     Lampert 

Foote,  26  Miss.  476.  v.  Lithgow,  1  Bush   (Ky.),  176.    That 

*  Wiggins  v.  Gillette,  93  Ga.  20,  19  this   presumption   does   not  apply   in 

S.  E.  86,  44  Am.  St.  Rep.  123.  the   case   of   courts   exercising   a'spe- 

°  Kalb  V.  German  Savings,  etc.,  So-  cial  or  merely  statutory   jurisdiction^ 

ciety,   25   Wash.   349,    65   P.   559,   87  see  Graham  v.  Whitlev,  26   N.  J.  L. 

Am.   St.  Rep.  757.  254;  Swain  v.  Chase,  12  Ca-1.  283. 

"In  re  Marchant's  Estate,  121  Wis. 


Sec.  67.]  Presumptions.  221 

proceeding's,  as  well  as  to  courts  of  general  jurisdiction,^  and  it  will 
be  presumed  that  it  acted  rightly.^''  Thus,  where  the  evidence 
failed  to  show,  affirmatively,  that  an  administrator's  bond  was  ap- 
proved, in  writing,  by  the  judge  of  probate,  an.d  the  contrary  did 
not  appear, — the  case  disclosing  that  all  the  other  necessary  steps 
were  taken  with  strictness  and  accuracy ;  that  the  sale  was  public ; 
that  the  purchaser  entered  immediately  and  held  the  premises  for 
more  than  20  years  ;  that  the  law  required  such  approval  before  the 
bond  could  be  filed,  and  that  the  bond  was  actually  filed, — the  law 
fully  authorized  the  conclusion  that  all  was  done  which  was  re- 
quired to  give  the  purchaser  a  perfect  title."  So,  where  a  license 
has  been  g-ranted,  it  is  presumed  that  the  court  had  the  proper 
evidence  before  it.^^  So,  where  a  letter  of  guardianship,  regular  on 
its  face,  is  issued  by  a  court  having  jurisdiction  in  the  premises, 
it  will  be  presumed  that  all  the  necessary  preliminary  require- 
ments have  been  complied  with,  and  that  it  was  legally  issued. ^^ 
So,  where  a  bond  has  been  given,  which  the  law  requires  should  be 
approved  by  the  court,  such  approval  will  be  presumed,  even 
though  there  is  no  written  memorandum  thereof  on  the  bond.^* 
It  is  presumed  that  a  court  of  record  of  another  State  had  juris- 
diction of  the  subject-matter  in  controversy;^^  but  such  a  pre- 
sumption will  not  be  made  where  there  is  evidence  to  the  contrary, 
nor  where  the  record  fails  to  show  notice  to  the  defendant. ^^ 

Sec.  67.  Regularity  of  Appointment  of  Officers. 

If  a  person  acts  as  a  public  officer,  as  a  magistrate,  judge,  etc., 
proof  of  such  fact  is  'prima  facie  evidence  that  he  was  duly  elected 
or  api^ointed  to  such  office,^  and  that  he  had  the  requisite  authority 
as  such  to  do  the  acts  in  question,^  and  has  complied  with  all  the 

*  State  V.  Hinchman,  27   Penn.   St.  S.    P.    State   v.    Lewis,    22    id.    564; 

479,  Cromelieu  v.  Brink,  29  Penn.  St.  522; 

1"  Outlaw  V.  Davis,  27  111.  467;  Mc-  Morgan  v.  State,  12  Ind.  448. 

Greers  v.  McGreers,  1  S.  &  P.   (Ala.)  "Cromelieu  v.   Brink,  ante. 

30  ■   Merritt  v.  Baldwin,  6  Wis.  439 ;  '°  Buffum     v.     Stimpson,     5     Allen 

Thorp   V.    Com.,   3   Met.    (Ky.)    411:  (Mass.),  591. 

State  V.  Farrish,  23  Miss.  483.     This  ^^  Com.  v.  Blood,  97  Mass.  438. 

presumption    applies    to    proceedings  '  Eex  v-  Verelst.  3  Camp.  432. 

in    a    probate    court.        Richmond   v.  ^  Ur-ay    v.    Hoyapanubby,    18    Miss. 

Hudenson,   18  Ark.  449.  452;      Shelbyville    v.     Shelbyville,     1 

"Austin  V.  Austin,  50  Me.  74.  Met.    (Ky.)    52;      Devall  v.   Chappin, 

'^'Com.  V.  Bolkom,  3  Pick.   (Mass.)  15  La.  An.  566;     Landry  v.  Martin, 

281.  15  id.  1. 

"Den  V.  Gaston,  25  N.  J.  L.  615; 


222  Evidence.  [Cliap.  3 

requirements  of  the  statute  as  conditions  precedent  to  entering 
upon  the  discharge  of  their  duties.^  Consequently  it  is  sufficient 
"prhna  facie  evidence  to  show  that  a  person  acted  as  a  public  officer 
Anthout  proof  either  of  his  appointment  or  election,  and  the  burden 
is  upon  the  person  questioning  his  right  to  act  as  such,  to  prove 
that  he  had  no  authority  to  act  as  such,  and  this  applies  to  attor- 
neys,^ justices  of  the  peace,  constables,  ministers  of  the  gospel,^ 
officers  of  any  branch  of  the  revenue,  or  indeed  any  public  officers. 
The  testimony  of  men  who  were  formerly  street  commissioners 
is  competent  to  prove  them  such.  Parol  proof  that  a  certain  act 
appertaining  to  a  particular  public  office  was  done  by  a  man  in 
l^ossession  of  the  office  acting  in  the  capacity  of  such  officer  is 
competent  evidence  to  show  prima  facie  that  the  act  was  official.^ 
Thus  proof  that  a  person  acted  as  sheriff,^  deputy  sheriff,  commis- 
sioner for  the  taking  of  depositions,^  master  in  chancery,^  or  in- 
deed in  any  public  office,  is,  in  general,  sufficient  proof  of  his  au- 
thority to  do  so,  until  the  contrary  is  proved ;  and  this  rule  obtains 
as  well  in  actions  in  favor  of  a  public  officer  as  in  those  against 
him.^''  In  an  early  New  York  case^^  the  defendant  justified  the 
taking  of  property  as  deputy  sheriff  under  an  execution,  and  on 

'Nelson   v.   People,   23   N.  Y.   293;  inconvenient    to    throw    upon    parties 

Kilpatriek   v.    Froot,    2   Grant's    Cas.  the    burden    of   showing,    in    the   first 

(Penn.)    108:     Lackawanna  Iron  Co.  instance,    that    public    officers,    upon 

V.   Fales,  55   Penn.   St.   90.     The  rule  whose  acts  they   rely,  were  duly  au- 

is,    in    reference    to    acts    of    officers,  thorized   or  qualified   to  perform   the 

where     certain     conditions     precedent  act.    ~ 

are    asserted,    that,    when    an    officer  *  Berr_\Tnan   v.   Wise,  4   T.   R.   366 ; 

does  an  act  which  would  be  a  viola-  Brown    v.    Minis,   2    Const.    Rep.    (S. 

tion  of  duty  unless  certain  terms  or  C. )    235;   Pearce  v.  Whale,  5  B.  &  C. 

conditions   had   first   been   performed,  38. 

such    performance   will    be    presumed  °  Goshen    v.     Stoninfrton.    4     Conn, 

as    between    the    individual    and    the  209.      As  to   justices   and   constables, 

State,    to    have    taken    place.       Titus  see  Berrynian  v.   Wise,  4  T.  R.   306; 

V.    Kimbro,    8    Tex.    210.       And    the  Rex    v.    Gordon,    1    Lea.    C.    C.    515; 

same   rule   prevails   as    to   conditions  Turner  v.  Fendall,  1  Cranch   (U.  S.), 

precedent     to    be    performed    by     an  117. 

officer     before     he    enters     upon     the  "Conner   v.    City   of  Nevada    (Mo., 

discharge   of   his   duties,   and    it  will  1905),  86  S.  W.  256. 

be    presumed   that    he   was    duly    ap-  '  Bunbury  v.  Matthews,   1   C.  &   K. 

pointed    or    elected    and    qualified    in  382. 

cases  in  which  he  is  a  party  to  the  "  James  v.  Brown,  5  B.  &  Aid;  243 ; 

record,    if   it   is   shown   that   he    has  R.  v.  Howard,  1  M.  &  R.   187;  R.  v. 

previously  acted  in  the   discharge  of  Newton,  1  C.  &  K.  480. 

the    duties    of    such    office;     and  this  "Butler  v.  Ford,  1  C.  &  M.  662. 

presumption    remains   until    it   is   re-  '"  Cannell  v.  C*urtis,  2  N.  Cas.  228 ; 

moved    by    evidence.        Hutchings    v.  M'Gahev  v.  Alston,  2  M.  &  W.  211. 

Von  Vokkelen,    34   Me.    126.     And   it  "Porter    v.    Luther,    3    John.     (N. 

would    be    obviously    impolitic    and  Y. )    431. 


Sec.  67.]  Peesumptions.  223 

trial  offered  to  prove  himself  a  general  deputy  of  the  sheriff,  by 
reputation;  the  justice  rejected  the  evidence,  and  required  him 
to  produce  his  appointment,  and  upon  certiorori,  the  judgment 
was  reversed  upon  this  ground.  The  same  principle  has  been  ap- 
plied to  the  case  of  magistrates.  Thus  in  a  Connecticut  case^^  it 
appeared  that  a  certain  person  had  been  appointed  a  justice  of  the 
peace,  and  to  prove  that  he  was  duly  qualified  to  act,  a  witness 
was  offered  to  prove  that  he  had  issued  a  writ  and  received  the 
duty  upon  it.  This  was  held  competent  as  prima  facie  proof,  al- 
though the  writ  was  not  produced.  So  where  a  deed  was  produced 
which  was  acknowledged  before  a  person  styling  himself  a  justice- 
of  the  Common  Pleas,  it  was  held  that  it  would  be  presumed  that 
he  was  such,  until  the  contrary  was  proved.^^  So,  where  a  person 
executed  a  warrant  directed  to  him  as  coroner,  it  was  held  that  this 
was  sufficient  proof  of  his  authority  without  the  production  of  his 
commission.^*  So  the  celebration  of  a  marriage  by  a  person  stylino- 
himself  a  minister  of  the  gospel  is  prima  facie  proof  of  his  au*^ 
thorrty  to  do  so.^^  So,  proof  that  the  plaintiffs  acted  as  officers  of - 
a  revenue  cutter  was  held  sufficient,  prima  facie,  in  an  action  by 
them  to  recover  their  proportion  of  a  forfeiture.'^  So  it  has  been 
held  that  a  person  may  be  proved  to  be  a  collector  and  trustee  of 
a  school  district  by  reputation  f  and  the  same  rule  also  applies  ta 
persons  acting  publicly  as  officers  of  a  corporation.'^ 

How  far  this  rule  applies  to  professional  men,  suing  or  jbeing 
sued  as  such,  is  not  very  definitely  settled.  In  the  case  of  attor- 
neys,'^ clergymen,'*^  and  surgeons,^'  recoveries  for  or  against  them 
in  that  capacity  have  been  upheld  upon  proof  that  they  acted  in 

J=  Vernon  V.  East  Hartford,  3  Conn.       v.    Cooke.    8    X.    Y     67-      Peonle   v 
4/D.        See   also    Turner    v.    Field,    1       Pearse    -^7   X    Y    45        '  ^^   ^- 

^'^.i^  V-^i.   ,   Pet.    ,U.  S.      8;^'°'™'="  ^■■^""'•■■^  ^^■'"-    '^™-> 

Eafb.'  ^Y'f'T'-L''£^7'^-  20r"''™    '■    •''°"'"«^°"'    '    °°""- 

son   justifies    in   an    action    for    false  ^«  Lawrer   v.    Steele     3    Wash      /TT 

imprisonment,   upon  the  ground  that  S.  C.  C ")    464                ' 

he   was   a   justice   of  the   peace,   and  "McCoy  v.' Curtice,   9   Wend.    (N 

acting  in  his  official  capacity,  it  has  Y.)    17                                                     ^ 

been    held     that    he    is    required    to  ^«  United  States  Bank  v.  Dandrid-e 

prove  that   he  is  not  only  de  facto,  12  Wheat.  (U.  S  )  70          -^^"'^"^^e, 

but     also   (/e    jure    a    justice    of    the  "  Berryman  v.  Wise,  4  T    R    366 


peace,    and,   as    his   official    character  -  Bevan  v.   Williams,  3  f.  R    635 

is  directly  m  issue,  he  must  establish       n.    {a).  ' 

it  affirmatively.  Newman  v.  Tier- 
nan,  37  Barb.  (N.  Y.)  159.  As  to 
quo  warranto  proceedings,  see  People 


it   affirmatively.        Newman    v.    Tier-  ^' Gremaine    v     Le    Ciprk      Jbn      9 

nan,   37   Barb.    (N.  Y.)    159.       As  to       Camn.   144  ^^    ^'    '^'•'    ^ 


(o). 

•■'  Gre: 

Camp.   144. 


224  Evidence.  [Chap.  3 

that  capacity,  without  proof  that  they  were  so  in  fact.  But  Mr. 
Taylor^  in  his  work  upon  Evidence,  voL  1,  p.  182  (7th  ed.),  says: 
^'These  cases  seem  to  rest  not  so  much,  if  indeed  at  all,  upon  the 
presumption,  as  upon  the  ground  that  the  opposite  party  had,  by 
his  admissions,  either  by  word  or  deed,  rendered  it  unnecessary  to 
prove  the  actual  appointment.^^  In  cases,  therefore,  where  no 
such  admission  has  been  made,  the  safer,  if  not  the  necessary 
course,  will  be  to  prove  the  appointment  in  the  ordinary  manner." 
Modern  practice  and  recent  decisions  seem  to  require  such  proof. 
In  an  English  case,^^  in  an  action  brought  by  a  physician  for 
defamation,  where  the  slanderous  words  denied  the  professional 
character  of  the  plaintiff,  proof  that  he  had  acted  as  such,  coupled 
w'ith  evidence  of  a  Scotch  diploma,  was  held  not  sufficient  to  en- 
title him  to  a  verdict.  '"Xo  doubt,"  said  Lord  Dexmax,  ''a  person 
complaining  of  a  slander  upon  him  in  a  particular  character,  must 
prove  that  he  possesses  that  character  when  the  slander  does  not 
admit  it." 

In  the  case  last  referred  to,  the  court  was  equally  divided  upon 
the  question  whether  proof  of  acting  as  physician  was  sufficient. 
But  Mansfield  and  Heath  thought  that  the  words  of  the  slander, 
^'Dr.  Smith  has  upset  all  we  have  done,  and  die  he  (the  patient) 
must,"  implied  an  admission  of  the  character  in  which  the  plaintiff 
sued.^* 

'-  Chambers,  J.,   in  Smith  v.  Tay-  not   appear   that    any    evidence   wa3 

lor,   1  N.  R.  210.  offered    that    he    ever    acted    in    that 

"Collins  V.  Carnigu,   1   Ad.   &   El.  capacity.       Sellers  v.  Till,  4  B.  &  C. 

695.  055.     And   tlie   same   obsiervation    ap- 

"  It  may  be  observed,  however,  on  plies  to  the  cases  of  Savage,  1  Doug, 
this  case,  that  the  question  whether  356,  n.  (4),  and  Cortis  v.  Kent 
acting  as  a  physician  is  sufficient  Waterworks  Co.,  7  B.  &  C.  314,  in 
prima  facie  proof  of  being  one,  was  the  former  of  which  the  plaintiff,  who 
not  directly  decided,  because  the  sued  as  a  barrister,  relied,  not  on 
plaintiff,  not  content  with  resting  his  his  practice,  but  on  the  book  of  the 
case  on  such  evidence,  proceeded  to  Society  of  Lincoln's  Inn,  containing 
prove  that  he  had  received  the  de-  the  order  for  his  call ;  and  in  the 
gree  of  doctor  of  medicine  from  the  latter,  a  party,  suing  in  the  charac- 
University  of  St.  Andrew's:  and  as  ter  of  treasurer  to  certain  commis- 
the  court  held  that  this  did  not  en-  sioners,  proved  his  appointment  to 
title  him  to  practice  in  England,  he  the  office.  Still,  these  cases,  though 
could  not,  of  course,  fall  back  upon  not  direct  authorities,  tend  to  show- 
proof  of  practice  upon  the  legality  what  the  practice  has  been,  and  so 
of  which  he  himself  had,  by  his  far  support  the  view  that  the  rule 
evidence,  thrown  doubt.  In  another  which  renders  evidence  of  acting 
action  of  slander,  brought  by  a  col-  prima  facie  proof  of  due  appoint- 
lector  of  tolls,  the  plaintiff  was  non-  ment,  is  confined  to  cases  where  the 
suited  on  failing  to  prove  his  ap-  parties  occupy  a  public  situation,  or, 
pointment  to  that  office,  but  it  does  perhaps,    where    the    question    of   ap- 


Sec.  67.]  Presumptions.  225 

In  such  actions  where  the  declaration  states,  as  matter  of  in- 
ducement, that  the  plaintiif  holds  a  certain  office,  or  belongs  to  a 
certain  trade  or  profession,  no  evidence  is  required  to  support  the 
statement  unless  it  is  distinctly  denied  by  the  defendant's  plea. 

Enough  has  been  said  to  illustrate  the  extent  to  which  the  rule 
is  carried,  and  it  is  proper  to  say,  with  reference  to  the  effect 
of  this  species  of  evidence,  that,  where  the  rights  of  third  persons 
are  concerned,  it  is  generally  sufficient  for  them  to  show  that  the 
officer  through  whom  or  by  whose  acts  they  claim,  is  so  de  facto, 
and  the  fact  that  he  is  not  so  de  jure  cannot  be  shown  to  defeat  or 
prejudice  their  rights.^^ 

As  to  the  precise  species  of  evidence  necessary  to  show  that  a 
person  is  an  officer  de  facto,  which  will  preclude  inquiry  into  the 
validity  of  his  appointment  or  election,  no  definite  general  rule 
can  be  formulated  from  the  authorities,  as,  from  the  nature  of 
things,  each  case  must  largely  depend  upon  its  own  peculiar  cir- 
cumstances. The  mere  claim  to  be  a  public  officer,  and  the  per- 
formance of  a  single,  or  even  a  number  of  acts  in  that  character, 
will  not  necessarily  in  all  cases  constitute  a  person  an  officer  de 
facto,  but  there  must  generally  be  some  color  of  appointment  or 
election,  or  an  acquiescence  on  the  part  of  the  public  for  a  length 
of  time  which  affords  a  presumption  of  such  appointment  or  elec- 
tion}^ But  where  the  person  assuming  to  be  an  officer  is  himself  a 
party  to  the  suit,  and  the  only  individual  to  be  injuriously  aifected 
by  an  inquiry  into  the  validity  of  his  official  title,  proof  of  acts  by 
him  as  such  officer  is,  in  his  favor,  merely  prima  facie  evidence  of 
his  being  such.^^  But  in  actions  against  him,  by  proof  of  such  acts, 
he  is  estopped  from  denying  his  official  character.^^    It  may  be  well 

pointment    is    not    directly    at    issue.  Y. )    549;   Wilcox   v.   Smith.   5   Wend. 

The  case  of  R.  v.  Jones,  1  Lea.  C.  C.  (N.    Y.)    231;   Mason   v.   Dillingham, 

74,  where,  on  an   indictment  against  5    Mass.    170;      Fowler    v.    Beebe,    9 

an  apprentice  for  a  fraudulent  enlist-  John.    (N.  Y. )   231. 

nient,     it     was     held     that     the     in-  ^*  Wilcox    v.    Smith,    5    Wend.    (N". 

denture     must     be     proved,      is     an  Y.)   231.       See    State   v.    Carroll,    38 

authority    on    neither     side    of     this  Conn.     449,     where     it    is     held    not 

question,  for   that  decision   rested  on  necessary  in  all   instances  that  there 

the  ground   that,   as   the   actual   and  should  be  a   color  of  appointment  or 

legal    binding    was    the    fact    which  election. 

constituted    the   gist    of    the    offense,  "  Lawler    v.    Beebe,    9    Mass.    231; 

this    could    only    be    proved    by    the  Cone  v.  Lawler,  10  id.  290 

best  evidence.  ^  Hughes   v.   James,   3   J.   J.    Mar 

" Doty  V.  Gorham,  5  Pick.   (Mass.)  (Ky.)    700. 
487;   People  v.   Collins,   7   John.    (N. 

15 


226  Evidence.  [Chap.  5 

here  to  sav  tliat  an  officer  de  facio  is  one  whose  acts,  though  he 
was  not  a  lawful  officer,  the  law,  upon  principles-  of  policy  and 
justice,  will  hold  valid,  so  far  as  they  involve  the  interests  of  the 
public  and  third  persons ;  and  this  is  done  where  the  duties  of  the 
office  were  exercised  :  1.  "Without  a  known  appointment  or  election, 
but  under  such  circumstances  of  reputation  or  acquiescence  as  were 
calculated  to  induce  people  without  inquiry  to  submit  to  or  invoke 
his  action,  supposing  him  to  be  the  officer  he  assumed  to  be.  2. 
Under  color  of  a  known  and  valid  appointment  or  election,  but 
where  the  officer  has  failed  to  conform  to  some  precedent,  require- 
ment or  condition,  as  .to  take  an  oath,  give  a  bond,  or  the  like. 
3.  Under  color  of  a  known  election  or  appointment,  void  because 
the  officer  w^as  not  eligible,  or  because  there  was  a  want  of  power 
in  the  electing  or  appointing  body,  or  by  reason  of  some  defect  or 
irregularity  in  its  exercise,  such  ineligibility,  want  of  power,  or 
defect  being  unknowm  to  the  public.  4,  Under  color  of  an  election 
or  appointment  by  or  pursuant  to  a  public,  unconstitutional  law,, 
before  the  same  has  been  adjudged  to  be  such. 

The  acts  of  an  officer  appointed  by  and  acting  under  and  pur- 
suant to  an  unconstitutional  law,  performed  before  the  unconsti- 
tutionality of  the  law  has  been  judicially  determined,  are  valid 
as  respects  the  public  and  third  persons,  as  the  acts  of  an  officer 
de  factor^  In  order  to  constitute  a  person  such  an  officer  he  must 
be  in  the  actual  possession  of  the  office  and  have  the  same  under 
his  control.  If  the  officer  de  jure  is  in  possession  of  the  office — if 
the  officer  de  jure  is  also  the  officer  de  facto — then  no  other  person 
can  be  an  officer  de  facto  for  that  office.  Two  persons  cannot  be 
officers  de  facto  for  the  same  office  at  the  same  time.^° 

Sec.  68.  Official  Sales. 

Where  a.  public  officer  is  required  to  sell  property,  either  at  pub- 
lic or  private  sale,  and  as  a  condition  precedent  thereto  certain 
steps  are  required  to  be  taken,  it  will  be  presumed  that  all  such 
conditions  were  complied  with  before  such  sale  w-as  made.^  Thus,, 
in  the  absence  of  proof  to  the  contrary,  a  sheriff,  at  a  sale  of  land 
under  an  execution,  wdll  be  presumed  to  have  complied  with  the 

=»  State  V.  Carroll,  ante.  'Hewitt    v.    Stephens,    5    La.    An. 

'•M'Cahon     v.     Commissioners,     8       640:       Culbertson    v.     Milliollin,    22. 
Kan.  437.  Ind.  362. 


Sec.  CO.]  Presumptions.  227 

requirements  of  the  law  in  not  selling  more  than  was  necesarj  to 
satisfy  the  execution,  if  the  land  was  divisible." 

So  where  the  record  of  a  constable's  sale  is  silent  as  to  whether 
due  notice  w^as  given  of  the  sale  or  not,  the  court  will  presume  that 
the  constable  did  his  duty.^ 

So,  too,  the  presumption  is  that  a  sheriff  who  sells  property  on 
execution,  has  done  his  duty  in  previously  making  a  levy,  and  the 
fact  will  be  deemed  to  be  admitted,  if  no  objection  is  made  at  the 
trial;*  and  even  where  property  is  sold  by  a  sheriff  in  another 
State,  it  will  be  presumed  that  the  deed  given  is  in  conformity 
with  the  laws  of  that  State,  until  the  contrary  is  shown.^ 

Where  a  return  shows  a  sale  after  appraisement,  the  latter  wall 
be  presumed  legal.® 

So,  too,  although  on  a  trial  involving  the  validity  of  a  tax  sale, 
a  part  only  of  the  requisite  proofs  are  positive  and  direct,  yet,  if 
the  suit  is.  brought  more  than  thirty  years  after  the  sale,  the  jury 
are  at  liberty  to  presume  that  the  tax  was  duly  authorized  and 
assessed,  and  that  all  the  other  proceedings  requisite  to  the  validity 
of  the  sale  were  properly  had.^ 

Sec.  69.  Payment. 

When  the  existence  of  a  claim  is  once  established,  payment  there- 
of is  not  presumed,  except  under  peculiar  circumstances,  until 
after  the  lapse  of  twenty  years.  But  the  person  pleading  payment 
is  bound  to  establish  it,^  and  the  mere  circumstance  that  the  cred- 
itor was  poor  or  in  embarrassed  circumstances,  and  that  the  debtor 
was  abundantly  able  to  pay  when  the  debt  matured,  will  not  of 

^  Banks  v.  Bales,  16  Ind.   423.  Mo.     619;      O'Brien     v.     Coulter,     2 

'  Culbertson    v.    Milhollin,    22    Ind.  Blackf.     (Ind.)     421;      Higginson    v. 

362.  Mein,  4  Cranch    (U.  S.),  420;   Young 

*  Smith  V.   Hill,  22   Barb.    (N.   Y.)  v.   Price,  2  Munf.    (Va.)    534.       This 

656.  presumption     has     been     applied     in 

°  Sadler  v.  Anderson,  17  Tex.  245.  the  case  of   bonds,  Tinsley  v.  Ander- 

nVaddell   v.   Judson,    12    La.   Ann.  son.    3    Call    (Va.).   329;   Durham   v. 

13.  Greenly,   2  Harr.    (Del.)    124;    Cottle 

'Freeman  v.  Thayer.  33  Me.   76.  v.  Payne,  3  Day   (Conn.),  289;   Bart- 

^  Stockton   V.    Johnson,    6    B.    Mon.  lett  v.   Bartlett,  9  N.  H.  398;      Has- 

(Ky. )    409;      Clark   v.   Clements,    33  kell   v.   Keen,   2   N.  &  McC.    (S.   C.) 

N.    H.    5G3 ;   McKinney    v.    Slack,    19  160;   taxes,  Calebrook  v.   Stewartson, 

N.   J.   Eq.    164;   McLendon  v.   Hamb-  28  X.  H.   75;      Dalton  v.   Bethlehem, 

lin,  34  Ala.  86 ;   Buzzell  v.   Snell,  25  20    id.    505 ;      Andover    v.    IMerrimac 

N.   H.   474;      Witherell   v.    Swan,   32  Coimtv,      28      id.      137;      judqments. 

Me.    247;      Caulfield    v.    Sanders,    17  Kennedy  v.   Denoon.   3   Brev.   '(S.  C.) 

Cal.    569;      Yarnell   v.  Anderson,    14  476;      Burton    v.    Cannon,    5    Harr. 


228  Evidence.  [Chap.  3 

itself  raise  or  support  a  presumption  that  the  debt  is  paid,'  al- 
though such  evidence  is  admissible  as  bearing  upon  the  question 
in  connection  with  other  circumstances ;  and  it  has  been  held  that 
evidence  showing  that  the  debtor  was  poor  and  insolvent  when  the 
debt  matured,  and  for  a  considerable  period  afterwards,  tends  to 
rebut  the  presumption  of  payment  by  the  lapse  of  twenty  years.^ 
In  cases  where  there  is  no  sta.tutory  limitation,  in  the  language  of 
Lord  Erskine/  "mankind,  from  the  infirmity  and  necessity  of 
their  situation,  must,  for  the  preservation  of  their  property  and 
rights,  have  recourse  to  some  general  principle  to  take  the  place  of 
individual  and  specific  belief,"  and  as  a  consequence,  from  the 
lapse  of  twenty  years  from  its  maturity,  without  proof  of  any  cir- 
cumstance to  show  that  its  existence  was  admitted  or  acknowl- 
edged, juries  are  to  presume  that  a  debt  has  been  paid,  whether  it 
is  evidenced  by  writing  under  seal  or  not;  and,  while  the  court 
itself  cannot  make  such  a  presumption  a  new  trial  will  usually  be 
granted  if  the  jury  disregards  it.^  This  presumption  being 
founded  upon  public  policy,  although  a  presumption  of  fact 
merely,  is  nevertheless  regarded  as  of  such  force  that  the  facts  re- 
lied upon  for  its  rebuttal  must  amount  to  more  than  mere  belief 
deduced  from  the  weight  of  testimony  being  on  that  side,  and  must 
be  of  such  a  character  as  would  revive  a  debt  barred  by  the  Statute 
of  Limitations.* 

"  An  admission  simply,"  says  Wardlaw,  J.,^  that  a  debt  has 
not  been  paid,  will  not  be  sufficient  unless  it  be  an  ad- 
mission amounting  to  an  acknowledgment  of  a  subsisting  UabiUty 
like  that  viliicli  would  renew  a  debt  barred  by  the  statute;"  and 
especially  would  this  be  the  rule  in  those  States  where  the  statute 
provides  that  such  a  presumption  shall  be  raised,  and  there  would 

(Del.)    13;     legacies,  Hayes  v.  Whit-  17  S.  C.  481.     That  the  jury  and  not 

all,    13    X.    J.    Eq.    241;     mortgages,  the   court   are   to   presume '  payment, 

Sweetser  v.  Lowell,   33  Me.  446;     or  see      McBride      v.      Moore.      Wright 

any  specialty  debt.  Xing'  v.   Coulter,  (Ohio),    524.        Where    a    note    and 

2  Grant's  Cas.   (Penn. )   77;  Shepard's  mortgage  were  executed  in  18.58.  due 

Appeal,   2   id.    402 ;     or    debt   or    lia-  in  one  year,  and  suit  was  not  brought 

bility     arising     upon     any     contract,  to  enforce  it  until   1880.  it  was  held 

whether    sealed    or    not.        Clark    v.  that  very  slight  eA'idence  would   sus- 

Clement,  33  X.  H.  563.  tain  a  finding  of  payment.     Pattie  v. 

^Alexander  v.  Dut«her,  7  Hun   (X.  Wilson,   25    Kan.    326.        Quere,    was 

Y.),  439.  any   evidence   beyond   the  mere   lapse 

^Farmer's     Bank     v.     Leonard,     4  of  time  necessary? 
Harr.    (Del.)    536.  « Bovce   v.    Lake,   ante;      Stover   v 

*In  Hillary  V.  Waller,  12  Vas.  267.  Duren,  3  Strobh.    (S.  C.)    500. 

=  Simpson,  C.  J.,  in  Boyce  v.  Lake,  'In  Stover  v.  Duren.  ante. 


Sec.  69.]  Presumptions.  229 

seem  to  be  no  good  reason  why  the  common-law  presumption 
should  not  have  the  same  force.  "Presumptions,"  says  Harper, 
Ch.,^  "must  be  made  against  the  well-known  truth  of  the  fact.  If 
twenty  years  have  elapsed  without  payment  of  interest,  or  any 
acknowledgment  of  a  bond,  we  must  presume  it  paid,  noHuith- 
standing  the  fullest  conviction  that  it  never  has  been  paid."^  The 
law  gives  to  this  presumption  an  artificial  and  technical  weight 
beyond  that  which  it  would  naturally  have  as  a  mere  circum- 
stance bearing  on  the  question  of  payment,  and  the  evidence  must 
be  of  such  facts  and  circumstances  as  fairly  overcome  it.^°  Affirm- 
ative proof  of  non-payment  and  explanation  of  the  creditor's  delay 
may  nullify  the  presumption  of  payment  even  after  twenty  years.^^ 
If  a  debt  is  payable  by  installments,  the  presumption  attaches  to 
each  installment  as  it  becomes  due.^"  If  when  the  debt  matured, 
the  debtor  was  under  any  disability,  proof  of  that  fact  will  rebut 
the  presumption,^^  as  if  he  was  absent  from  the  State,"  or  an  in- 
fant,^^  or  from  any  cause  in  a  situation  so  that  he  could  not  be 
sued  by  the  creditor.^«  Presumptions  of  this  class  do  not  arise 
against  the  government.'^  To  rebut  the  presumption  of  payment 
from  the  lapse  of  twenty  years,  it  may  be  shown  that  the  debtor 
acknowledged  the  indebtedness  as  existing  within  that  time,'^  or 
that  he  was  so  situated  that  the  claim  could  not  have  been  enforced 
against  him  at  law.'^ 

Hil/%^r'^f^rfT«n   ""•     ^'°^"^'    ^  ""^  ^^^^''  ""'  ^"""g  ^^-'"^h  there  was 

Vlr'^'       ''  *-"•, ^80.  an      understanding      that      payment 

McQueen  V.  Fletcher,  4  Rich.    (S.  should  not   be  enforced,   wiirnoTEe 

P^       k    \3.'      ^'■^''''    ''•    ^^°°^'    2^  reckoned  as  part  of  the  twenty  years. 

Walker   vM\  right,   2    Jones    (N.  "Daggett   v.   Tallman,  ante. 

C.)    L     155;   Herndon   V.    Bartlett,    7  -  Bartlett  v.  Bartlett,  9  N.  H.  398. 

T     B.    Mon.     (Ky  )    449;     Morris    v.  -  Dunlap  v.  Vail,  2  Cranch  (U.  S.). 

Hadsworth,    17   Wend.    (N.   Y.)    103.  180                                                   y^-^-i, 

A   statement  made  by  the   surety   of  "United  States  v.  Williams,  4  Mc- 

a    debtor,    after    the    debt    had    ma-  Lean    (U.   S.),   567 

tured,   that   the   creditor   had   agreed  ''Arline    v.    Miller     '>'?    Ga     3'>0- 

not    to    push    him    during    his,    the  Nixon  v.    Bynum,    1    Bairev    (S    C  )' 

surety  s,  life-time,  being  proved,   was  148;       Livingston    v.    Livingston,     4 

nejd  to  rebut  the  presumption  arising  John.  Ch.   (N    Y  )   294 

fi-om   the   lapse  of   time.        Fisher   v.  '"  Bailey  v.   Jackson,' 16  John.    (N 

Phillips,   4   Baxt.    (Tenn.)    243.  Y. )    210."'    The   presuinption    of   pay: 

A   \aS^'^  ""■   ^^"'  -^^   ^^-  ^^^'  ^^  '"^"^  "'^y  be  repelled  by  various  cir- 

^^2^^.L    ,      T    Ku     o    TT            ,-,.  ,  V  ('"mstances,    as    by    an    admission    of 

State    V.    Lobb,    3    Harr.     (Del.)  the   debt   within    twenty   years.     Mc- 

is'r.         4.^        m  „  Dowell    v.    McCullough.    17    S.    &    R 

'3  Daggett  V.  Tallman    8  Conn.  168.  (Penn.)    51;   Cattle  v.  Payne,  3   Day 

A,     T,  K  n-'^"'"',"^   '"'^'f"   ^^^   '^^'^^   «^  (Conn.),    289;   North    v.    Drayton     1 

the  Rebellion  deranged  the  collection  Harp.   Ch.    (S.   C.)    34;   Goldliawk  v. 


230 


Evidence. 


[Chap.  3 


Instances  may  arise  where  payment  may  be  presumed  from  the 
lapse  of  a  less  period  than  .twenty  years,  when  there  are  other  facts 
and  cirannstances  which,  taken  in  connection  with  such  delay  in 
enforcing  the  claim,  fairly  support  such  a  presumption;-'^  and  in 


Durne,  2  Wash.  (U.  S.  C.  C.)  323; 
by  tlio  i)aynipnt  of  a  part  of  the  debt, 
oitlior  ])iincij)al  or  interest.  Sanders 
V.  Meredith.  3  M.  &  K.  110;  Brear- 
den  V.  Searcey,  3  Marsh.  544;  or  a 
promise  to  pay  within  twenty  years, 
Eustace  v.  Gaskins,  1  Wash.  (U.  S. 
C.  C. )  188.  But  the  admission  must 
be  made  in  explicit  terms,  Haskell  v. 
Keen,  2  N.  R.  McCord  (S.  C),  1G6; 
or  by  the  debtor  himself,  or  some 
person  having  competent  authority 
to  bind  liim.  Tluis  neitlier  an  admis- 
sion or  i)art  payment  by  an  lieir-at- 
law.  will  1k^  operative  as  ajrainst  an 
executor  of  the  estate,  Blake  v. 
Quash,  3  McCord  (S.  C).  340:  Os- 
good V.  Manhattan  Co.,  3  Cow.  (N. 
Y.)  CU ;  nor  will  the  admission  of 
one  joint  obligor  deprive  the  others 
of  the  benefit  of  the  presumption. 
Haskell  v.  Keen,  ante.  The  insolv- 
ency of  the  debtor  may  be  shown,  or 
his  poverty  or  inability  to  pay, 
Boardnian  v.  Dc  Forest,,  5  Conn.  1; 
Fladlong  v.  Winter.  19  Ves.  196; 
Daggett  v.  Tallman,  8  Conn.  1G8; 
Waddell  v.  Elmendorf,  10  N.  Y.  170; 
but  the  insolvency  of  one  of  several 
joint  debtors  is  not  sufficient  to  repel 
the  presumption.  Boardman  v.  De 
Forest,  ante.  Or  it  may  be  shown 
that  tiie  parties  were  near  relatives, 
12  Ves.  206;  or  that  the  debtor  was 
permanently  absent  from  the  State, 
Shields  v.  Pringle.  2  Bibb  (Ky.), 
387 ;  but  merely  occasional  or  tem- 
porary absences  are  not  sufficient, 
Boardman  v.  De  Forest,  anic:  nor 
is  the  absence  of  one  only  of  two  or 
more  joint  debtors,  id.;  or  indeed  any 
facts  or  circiunstances  which  excuse 
delay,  and  show  that  the  debt  was 
not  in  fact  paid,  as  that  the  bond  was 
wrongfully  obtained  by  a  third  per- 
son, in  an  answer,  Boltz  v.  Bullman, 
1  Yeates  (Penn.),  584;  or  that  the 
obligee  died,  leaving  the  bond  with 
his  attorney,  who  did  not  deliver  it 
to  the  personal  representatives,  it 
not  appearing  that  they  knew  of  it. 
Jackson  v.  Hotchkiss,  6  Cow.  (N. 
Y. )     401.     So,    that   the    obligor    was 


the  obligee's  e.xecutor,  North  v.  Dray- 
ton, 1  Harp.  Ch.  (S.  C.)  34;  or  tliat 
the  obligee's  representative  had  long 
been  engaged  in  procuring  evidence 
to  establish  the  claim,  id.  The  pre- 
sumption is  liable  to  be  reltutted  and 
overcome  by  proof  of  any  facts  and 
circumstances,  the  legitimate  ten- 
dency of  which  is  to  render  it  more 
probable  than  otherwise,  in  the  minds 
of  tiie  jury,  tliat  payment  has  not  in 
fact  Ix-eninade;  and  tlie  question  is 
one  of  pure  fact  for  the  jury,  and  any 
evidence  tending  to  satisfy  them  tliat 
no  i)ayment  has  actually  been  made, 
is  competent  and  admissible.  Gran- 
tham V.  Canaan,  38  N.  H.  208.  Until 
rebutted  or  dispelled  by  evidence,  it 
has  all  the  force  and  etl'ect  of  plenary 
proof,  and  the  jury  are  not  allowed 
to  disregard  it.  Thompson  v.  Thomp- 
son, 2  Head.  (Tenn.)  405.  In  the 
case  of  a  payment,  whieh  is  relied 
upon  to  repel  the  presumption,  it 
cannot  now  be  proved  by  a  mere  in- 
dorsement made  by  the  payee,  at 
least,  unless  it  was  made  at  such  a 
time  anterior  to  the  attaching  of  the 
presumption  as  to  make  it  an  admis- 
sion against  his  interest,  and  to  repel 
all  suspicions  of  it  having  been  made 
merely  for  the  purpose  of  keeping 
the  debt  on  foot.  Roseboom  v.  Bill- 
ings. 17  John.  (X.  Y.)  184;  and  an 
indorsement  made  by  the  payee 
after  the  presumption  has  no  effect 
as  proof.  Roseboom  v.  Billings,  ante. 
'"Atkinson  v.  Dance,  9  Yerg. 
(Tenn.)  424;  Tilghman  v.  Fisher,  0 
Watts  (Penn.).  '411;  Fleming  v. 
Eniorv,  5  Harr.  (Del.)  46;  Blake  v. 
Quash,  3  McCord  (S.  C),  340;  Wal- 
ten  V.  Harrison,  9  La.  An.  234;  Mil- 
ledge  v.  Gardner,  33  Ga.  397.  The 
character  of  the  plaintiff  for  prompt- 
ness in  collecting  debts  due  him  as 
well  as  of  the  defendant  in  paying 
may  be  given  in  evidence  as  a  cir- 
cumstance tending  to  show  that  a 
debt  has  been  paid  in  a  less  time  than 
twentv  years.  Leiper  v.  Erwin,  5 
Yerg.' (Tenn.)  97:  Brubaker  v.  Tay- 
lor, 70  Penn.  St.  83. 


Sec.  69.] 


Peesumptioxs. 


231 


all  such  cases  it  is  for  the  jury  to  judge  of  the  weight  of  the  pre- 
sumption.^^ Thus,  it  may  be  shown  that  the  plaintiff  was  poor, 
and  the  debtor  of  undoubted  solyencj  during  the  period  which 
has  elapsed  since  the  debt  matured ;  and  where  delay  in  bringing 
suit  was  for  a  long  period,  although  less  than  twenty  years — as  in 
one  case,  seyenteen  years — although  such  eyidence  is  not  per  se  suf- 
£cient  to  raise  a  presumption  of  payment,  yet,  in  the  absence  of  any 
demand  or  recognition  of  the  debt,  or  partial  j^ayment  of  principal 
or  interest,  is  a  persuasive  circumstance,  and  may  when  slightly 
€on^ohorated,  he  sufficient  evidence  of  payment}^  But  mere  lapse 
of  time  for  a  period  less  than  twenty  j'ears,  although  it  is  shown 
that  the  debtor  was,  during  all  such  time,  solyent  and  able  to  pay, 
does  not  warrant  the  presumption,^^  This  artificial  presumption 
of  payment  no  more  permits  a  jury  to  giye  to  a  shorter  time  a 
force  beyond  its  natural  efficacy  in  producing  belief,  than  the  bar 
under  the  Statute  of  Limitations  permits  a  nearer  approach  to 
the  statutory  period  to  ayail.^* 


"Waters  v.  Waters,  1  Met.  (Ky.) 
519. 

--■  Brings'  Appeal,  93  Penn.  St. 
485 ;  Moore  v.  Pague,  1  Den.  ( Ky. ) 
327;  Blackburn  v.  Squab,  Peck 
(Tenn.),  60.  In  Bender  v.  Snyder, 
5  Barb.  ( N.  Y. )  G3,  the  lapse  of  four- 
teen years  after  the  last  installment 
upon  a  bond  or  mortgage  became 
due,  taken  in  connection  with  other 
circumstances,  was  held  sutficient 
to  raise  the  presumption  that  the 
Taond  and  mortgage  was  paid.  In 
McDaniel  v.  Goodall,  2  Caldw. 
(Tenn.)  391,  the  lapse  of  sixteen 
jears  after  a  decree  or  judgment  had 
been  obtained,  with  no  demand  or 
payment  of  principal  or  interest,  and 
no  attempt  to  enforce  collection,  was 
held  sufficient  to  raise  a  presumption 
•of  payment;  and  in  Thompson  v. 
Thompson,  2  Head.  (Tenn.)  405,  the 
same  rule  was  applied  to  a  bond. 
Lapse  of  time  is  a  circumstance 
which,  taken  in  connection  with 
others,  may  warrant  an  inference 
that  a  debt  has  been  paid,  even  after 
less  than  twenty  years,  and  its  value 
-as  a  circumstance  is  in  proportion  to 
the  length  of  time  which  has  elapsed 
since  the  debt  became  due.  Walker 
V.  Emerson,  20  Tex.  706.  See  Gould 
V.  White,  26  X.  H.  178;  Baker  v. 
JStonebroker,     36    Mo.     338,     for    in- 


stances in  which  specialty  debts  were 
presumed  to  have  been  paid  by  a 
lapse  of  time  less  than  twenty  years 
in  connection  with  other  circum- 
stances. 

"  Daly  V.  Erricsson,  45  N.  H.  786  j 
Thomas  v.  Hunnicott,  54  Ga.  337. 
In  order  to  repel  a  presumption  of 
payment  arising  from  the  lapse  of 
time  because  of  the  insolvency  of  the 
debtor,  such  a  state  of  insolvency  on 
his  part  must  be  shown  during  the 
ichole  period  as  proves  that  he  did 
not  pay  because  he  could  not.  Grant 
V.  Burgwyn,  84  N,  C.  560. 

=*Smithpeter  v.  Ison,  4  Rich.  (S. 
C. )  203.  Lapse  of  time,  although 
only  one  day  less  than  twenty  years, 
will  not  of  itself  warrant  a  presump- 
tion of  paj'uient,  but  when  coupled 
with  other  circumstances  the  jury 
may  find  the  fact  of  payment  there- 
from, although  a  plea  setting  up  the 
presumptive  payment  has  not  been 
filed.  Sadler  v.  Kennedy,  11  W. 
Va.  187;  Caldwell  v.  Prindle,  11  id. 
397.  Payment  of  a  judgment  may 
be  presumed  from  the  lapse  of  less 
than  twenty  j'ears  when  there  are 
persuasive  circumstances  which  can 
be  submitted  to  the  jury  in  connec- 
tion with  it.  Moore  v.  Smith,  81 
Penn.  St.  182;  Garniej'  v.  Renner, 
51  Ind.  372. 


232  Evidence.  [Chap.  3 

And  in  those  cases  where  a  shorter  period  has  been  permitted 
to  support  such  a  presumption,  it  will  be  found  that  such  lapse  of 
time  was  aided  by  other  circumstances/^  or  the  statute,  as  is  the 
case  in  some  of  the  States,  provides  a  shorter  period.  The  pos- 
session of  the  evidence  of  a  debt  hy  the  payer,  after  maturity, 
affords  prima  facie  evidence  of  its  payment  hy  him,  as  of  a  bill 
of  exchange  by  the  drawee,^^  of  a  bond  by  the  obligor,^^  of  a  note 
in  the  hands  of  the  maker.'^  But  the  presumption  arising  from 
this  circumstance  may  be  rebutted,  by  showing  that  such  evidences 
of  debt  were  placed  in  the  hands  of  the  debtor  for  a  si>ecial  pur- 
pose, or  that  he  came  into  their  possession  by  mistake  or  without 
the  consent  of  the  payee-^  The  payment  of  a  subsequent  debt  al- 
ways raises  the  presumption  that  prior  debts  have  been  paid.^*^ 
Thus,  in  the  case  last  cited,  where  three  notes  were  secured  by  a 
mortgage,  and  the  two  last  due  were  shown  to  have  been  sued  and 
recovered,  it  was  held  that  in  the  absence  of  opposing  proof,  after 
the  lapse  of  thirty  years,  the  presumption  was  irresistable. 

So,  where  a  broker  rendered  his  accounts  to  his  principal,  and  no 
motion  was  made  therein  for  a  claim  of  which  the  principal  was 
liable,  as  joint  debtor,  it  was  held  that  the  presumption  was  that 
such  claim  had  been  paid,  and  that  this  presumption  must  be 
overcome  before  the  broker  could  recover  thereon.^^ 

A  strong  illustration  of  this  rule  is  found  in  the  case  of  actions 
for  rent,  by  a  landlord  against  his  tenant.     In  such  cases  a  receipt 

"Pitkin  V.  Kent,  1   Root    (Conn.),  contract   having  been    done;  and   the 

312;      Winstanley  v.    Savage,   2    Mc-  same    rule    applies    to    all    cases    of 

Cord    (S.  C.)    Ch.   435;      Diamond   v.  evidences   of   debt.     Union   Canal   Co. 

Tobias,   12   Penn.   St.   312;   Bailey   v.  v.    Lloyd,    4    W.    &    S.    (Penn.)    393. 

Gould,  Walker    (Mich.),  478;   Wight-  The  possession  of  acceptances  by  the- 

man  v.  Butler,  2  Spears  ( S.  C. ) ,  357  ;  persons   making    them    raises    a    pre- 

^Hill  V.  Gavle.  1  Ala.  275;  Close  sumption  that  they  are  paid.     Haya 

V.  Field,  2  Tex.  232.  v.  Samuels,  55  Tex.  560. 

"Dav    V.    Clarke,    1    A.    K.    Mar.  ^^  Matthews  v.  Light.  40  Me.  394. 

(Ky.)  '521.  ^' Smith  v.  Tucker,  2  E.  D.  S.    (N. 

==«Alvord    V.    Baker,    9    Wend.     (N.  Y.  C.  P.)    193.     See,  also,  Bushee  v. 

Y.)    323;      Weidner  v.   Sehweigart,   9  Allen,  31  Vt.  631,  where  the  fact  that 

S.    &    R.     (Penji. )    385;      Garlock    v.  an  item  of  book  account  was  not  al- 

Geortun,  7  Wend.    (N.  Y. )    198;   Egg  luded  to  or  considered  at  the  time  of 

V.  Barnet,  3  E.  &  P.  196.  a  settlement  of  accounts  between  the 

2"  Banks   v.    Marshal,   23    Cal.    223.  parties,  and  no  excuse  for  not  having^ 

Checks    drawn    by    the    president    of  alluded  to  such  item  was  given  upon 

a   corporation   upon   the  treasurer   in  the  trial  of  an  action  to  recover  such 

favor    of    contractor,    and    found    in  item,   was   held   to    constitute   strong- 

the    possession    of    the    treasurer,    or  evidence    against    the    justice    of    the 

in    the    archives    of    the    corporation,  claim,   but  not  to  amount   to  an  ac- 

are    prima    facie    evidence    that    they  tual  bar  to  its  recovery, 
have  been  paid,  the  work  under  the 


Sec.  69.] 


Presumptions.  233 


for  the  payment  of  the  rent  last  accruing  raises  a  presumption  that 
all  previous  rent  has  been  paid.^^      g^^  .^^ere  an  employer  has  been 
in  the  habit  of  paying  his  employees  regularly  every  week  or 
month,  the  receipt  of  the  wages  accruing  for  the  last  week  or 
month  affords  presumptive  evidence  that  his  previous  wages  have 
been  paid,''  and  the  same  has  been  held  where  a  servant  had  left 
his  employer's  service  for  a  considerable  time  before  a  claim  for  a 
balance  of  wages  has  been  made.'"*     So,  where  an  agent  is  shown 
to  have  been  in  the  habit  of  accounting  to  his  principal  at  regular 
stated  periods  for  money  received  by  him  for  his  principal,  it 
will  be  presumed  that  he  has  so  accounted,  and  the  onus  of  proving 
the  contrary  is  upon  the  principal  f  and  in  the  case  of  factors  and 
commission  merchants  it  will,  after  reasonable  time— though  less 
than  twenty  years— be  presumed  that  they  have  accounted  for  the 
proceeds  of  goods  consigned  to  them  for  sale.'^    The  return  of  an 
execution  as  satisfied  raises  a  presumption  that  the  money  was  re- 
ceived by  the  plaintiff.'^    In  all  cases  where  previous  year's  taxes 
remaining  unpaid  are  required  to  be  carried  forward  to  the  next 
year,  the  failure  to  carry  forward  the  tax  of  a  previous  year  raises 
a  presumption  that  such  previous  year's  tax  is  paid.'^     Where  an 
attachment  of  property  is  made  upon  mesne  process  and  the  record 
fails  to  show  that  this  was  followed  by  a  levy  of  the  execution,  a 
presumption  is  thereby  raised  that  the  debt  was  paid.'^     From 
the  circumstance  that  a  promissory  note  is  given  by  one  person  to 
another,  it  will  be  presumed  that  the  payee  was  not  at  that  time 
indebted  to  the  maker,'^  and  that  all  claims  in  favor  of  the  maker 
against  the  payee  were  adjusted  at  that  time  f  but  this  presump- 
ti'on  is  only  prima  facie  in  its  effect,  and  may  be  rebutted  by  show- 
ing that  the  payee  was  in  fact  indebted  to  the  maker,  or  that  the 

"Patterson  v.  O'Hara,  2  E.  D.   S.  »« Lapham    v.    Braddick,    1    Taunt. 

(N.   Y.   C.   P.)    58;      Gilbert   on   Ev.  572.                                           ..   ,,  ^    ,,« 

157;      Bremer    v.     Knapp,     1     Pick.  '' ^oyd  v.  Foot   5  Bos    ( N.  \  0   HO. 

(Mass.)    337.       Payment  of  rent  re-  ^^  Attleboro  v.  Middleboro,  10  Pick, 

served  in  a  perpetual  lease,  or  con-  (Mass.)    378. 

vevance    in    form,   may   be    presumed  ^^  Benson   v.   Benson,   24   Miss.   625. 

after  the   lapse  of  twenty  years,  but  For  the  species  of  proof  requisite  to- 

the  non-payment  for  more  than  that  establish  a  payment,  as  well  as  what 

period  does  not  raise  a   presumption  constitutes   a   payment,  see  chap.       . 

that    the    covenant   to   pay    rent   has  "Payment."                                 ,xt   v  \ 

been        released        and        discharged.  *"  Gould  v.  Chase,  16  John.   (N    Y.) 

Lyon  V    Odell,  65  N.  Y.  28.  226;      De   Freest  v.   Bloomingdale,   5 

-Lucas  v.  Xovosilieski.  1  Esp.  296.  Den     (N.  Y.)   304. 

''  Seller  v.  Norman,  4  C.  &  P.  80.  "  Lake  v.  Tysen,  6  N.  Y.  461. 

8»  Evans  v.  Birch,  3  Camp.  10. 


23i  Evidence.  [Chap.  3 

note  was  given  for  an  independent  transaction,  not  affecting  exist- 
ing debts  between  the  parties.''-  There  is  no  presumption  that 
goods  sold  are  paid  for  on  delivery,  nor  can  such  a  presumption 
be  raised  from  the  circumstance  that  the  sellers  sent  to  the  buyer 
an  unreceipted  bill,  upon  which  was  written  or  printed  the  words, 
"Terms  cash."*^ 

Sec.  70.  Title  to  Property  presumed  from  Possession. 

As  has  already  been  stated,  the  presumption  is,  that  the  title  to 
property  is  in  the  person  in  whose  possession  it  is  found,^  unless 
there  are  circumstances  connected  with  such  possession  as  overcome 
this  presumption,  and  should  put  third  persons  upon  inquiry,"  and 
this  is  the  rule  both  as  to  real  or  personal  property.  In  the  case 
of  lands,  as  between  the  person  in  possession  and  a  third  person 
having  no  valid  title  thereto,  such  possession  prevails  as  evidence 
of  title,  until  a  better  title  is  established  in  the  other ;  but  when  a 
better  title  is  established,  the  party  in  possession  must  prove  his 
title.^  The  rule  relative  to  lands  may  be  said  to  be  that  where  the 
rights  of  two  hostile  parties  stand  upon  mere  possession  not  yet 
ripened  into  a  perfect  title,  he  who  has  the  prior  possession  has 

**Duguid  V.  Ogilvie,  3  E.  D.  S.   (N.  ficer    making    the     levj    of    proving 

Y.  C.  P.)    527.     As  to  the  presump-  property  in  the  defendant  in  the  exe- 

tion  of   pajTiient  of  mortgages,  lega-  cution.     Merritt  v.  Lyon,  3  Barb.  ( N. 

cies,  etc.,  see  those  heads.  Y. )    110.  So  where  property  has  been 

*^  Wellaner  \.  Fellows.  48  Wis.  10-3.  sold  on  execution,  evidence  that   the 

'  Drummond    v.    Hopper,    4    Harr.  defendant,   at   the  time  of    the   levy, 

<Del.)    327;   Finch  v.  Alston.  2  S.  &  and  for  eighteen  months  before,  had 

P.   (Ala.)   83;   Entriken  v.  Brown,  32  the  property  in  his  possession,  hired 

Penn.  St.  364:     Vining  v.  Baker,  53  it  out  and  otherwise  enjoyed  the  use 

Me.    544;   Sparks   v.    Rawls,    17    Ala.  of  it,  and  that  a  claimant  was  pres- 

211;      Goodwin   v.  Garr,   8   Cal.  G15;  ent  at  the  sale,  making  no  objection. 

Fish  v.  Skut,  21  Barb.    (X.  Y. )    333;  is  piima  facie  evidence  of  property  in 

jMillay  v.   Butts,   35   Me.    139.     Prop-  the  defendant  in  execution.     Bordine 

-erty  found  in  the  possession  of  a  de-  v.  Combs,  15  X.  J.  L.  (3  Green),  412. 

ceased  person  is  presumed  to  belong  In    an    action    by    a    party    holding 

to   the   estate    until    the    contrary    is  sheep    as    estrays.    for    their    alleged 

proved.     Succession  of  Alexander,   18  conversion,     the     burden     is     on    the 

La.  An.  337.     Where  goods  are  taken  defendant    to    show    that    by    o\\Tier- 

upon   execution   while   in    the   actual  ship  or  otherwise  he  was  entitled  to 

possession    of    the    defendant    in    the  take      the      sheep.         Hendricks      v. 

execution,  and  are  replevied  by  a  per-  Decker,  35  Barb.    (X.  Y. )   298. 

son  claiming  to  be  the  owner  thereof,  -Austin  v.  Bailey,  37  Vt.  219;  Cal- 

the  burden  of  proving  that  they  are  vin  v.  Warford,  20  Md.  357. 

his  property  rests  upon  the  plai'ntiflf;  MYendell    v.    Blanchard,    2    X.    H. 

but   if  the  goods  were  in  the  posses-  456;  Rachell   v.    Holmes,   2    Bay    (S. 

sion   of   another,   at  the   time  of  the  C),  487. 
levy,  the  burden  is  cast  upon  the  of- 


Sec.  70.]  Presumptions.  235 

the  best  right,  with  the  qualification  that,  if  the  party  having  the 
prior  possession  abandons  and  surrenders  it  to  the  adverse  party, 
he  cannot  afterward  set  it  up.^  And,  in  favor  of  long  possession, 
almost  every  variety  of  written  evidence  will  be  presumed,  and 
the  defective  links  in  the  chain  of  title  will  be  supplied  by  pre- 
sumption, and  the  title  declared  perfect,  when  the  possession  has 
continued  for  a  great  length  of  time.^  It  is  well  settled  that  prior 
actual  possession  of  chattels,  without  title,  is  good  as  against  a 
trespasser  who  has  no  better  right;"  and  in  an  action  either  of 
trover  or  trespass  for  chattels,  it  is  sufficient  if  the  plaintiif,  as 
against  the  defendant,  has  the  better  right  to  the  possession  of  the 
property,  although  he  has  no  actual  title  thereto,^  as  in  this  class 
of  actions  the  right  to  recover  depends  upon  the  right  to  the  pos- 
session at  the  time  of  the  conversion. 

But  where  property,  real  or  personal,  is  found  in  the  possession 
of  several  persons,  the  law^  refers  the  possession  to  him  who  has  the 
ownership.^ 

In  the  case  of  personal  property  the  presumption  of  title  arising 
from  possession  may  be  rebutted  by  showing  that  it  was  held  as 
bailee,  or  in  a  subordinate  capacity,^  as,  that  it  is  held  as  a  servant 
or  agent  for  the  real  owner.  Thus  it  was  held  that  the  presump- 
tion of  title  raised  by  possession  of  a  regular  warehouse  receipt, 
the  plaintiffs  alleging  that  they  derived  title  from  the  defendants, 
is  not  rebutted  by  proof  that  the  defendants  once  owned  it,  and 
that  the  person  to  whom,  in  his  own  name,  the  receipt  was  given, 
was  the  defendant's  agent.^*' 

Where  property  is  sold  and  there  is  no  evidence  as  to  whether 

*  Austin    V.    Bailev,    37    Vt.    219;  » Linscott  v.  Trask,  35  Me.  139. 
Clifton  V.  Lilly,  12  Tex.  130.  '» Horr  v.  Barker,  8  Cal.  ()09.       In 

°  Nixon  V.  Carco,  28  Miss.  414.  replevin   for    certain    hogs,    taken    by 

.    *  Knapp  V.  Winchester,  11  'Vt.  351;  the   defendant,   as   deputy   sheriff,   on 

€ook  V.  Patterson,  35  Ala.   102 ;   Cof-  an    execution    against    A.,    the    court 

fin    V.    Anderson,    4    Blackf.     (Ind.)  charged    the    jury    that,    if    A.    was 

395;   Carter  v.  Bennett,  4  Fla.  283.  found  in   the  possession  of  the  hogs, 

''Jones    V.    Sinclair,    2    N.    H.   319;  he    would    be    presumed    to    be    the 

Burton  v.  Taunchill,  6  Blackf.   (Ind.)  owner;     but    that    this    presumption 

470;      Fairbanks  v.   Plielps,   22   Pick.  would  yield   to   proof,   and   that  any 

(Mass.)     535;      Grady    v.    Newby,    6  proof   would    be    sufficient    if    it   pro- 

Blackf.    (Ind.)    442.  duced  belief  in  the  minds  of  the  jury 

*  Lenoir    v.    Rainey,    15    Ala.    667 ;  that  the  title  was  in  another.     Held, 
Maples  V.  Maples,  Rice    (S.   C. ),  Ch.  that  this  charge  was  correct.       Park 
300;  Miller  v.  Fraley,  23   Ark.  735;  v.  Harrison,  8  Humph.   (Tenn.)   412. 
■Ganenor  v.  Compbell,   17  Ala.  566. 


236  Evidence.  [Chap.  3 

the  vendor  had  the  possession  of  it  at  the  time  of  sale,  it  -will  be 
presumed  that  he  had  such  possession." 

"Where  goods  are  sold  without  any  special  contract  as  to  credit^ 
although  the  vendor  is  not  obliged  to  deliver  them  until  they  are 
paid  for,  yet  from  the  mere  circumstance  of  delivery  it  will  not  be 
presumed  that  they  were  paid  for,  nor  will  the  circumstance  that 
an  unreceipted  bill  was  sent  to  the  vendee  by  the  vendor,  upon 
which  was  written  or  printed  the  words,  "  Terms  cash,"  raise  such 
a  presumption.^^ 

Sec.  71.  Miscellaneous  Presumptions. 

Presumptions  may  arise  from  artificial  habits ;  as  the  course  of 
trade ;  the  course  of  the  post ;  the  customs  of  a  particular  trade,  or 
of  a  particular  class  of  people.  In  this  way,  the  time  of  credit, 
the  time  when  a  letter  was  received,  etc.,  etc.,  may  be  proved,  and 
stand  so  until  rebutted.^  Proof  that  a  letter  w^as  properly  ad- 
dressed and  mailed  raises  a  presumption  that  the  addressee  re- 
ceived it,  although  the  presumption  may  be  rebutted.^  In  the 
same  way,  on  proof  that  a  telegram  is  sent  asking  for  an  answer, 
the  receipt  of  a  telegram  purporting  to  be  a  reply  is  evidence  of 
a  reply  without  direct  evidence  that  the  supposed  sender  authorized 
it.  The  principle  is  that  the  presumption  obtaining  that  the 
postal  authorities  do  their  duty  accurately  should  be  extended  to 
telegraph  companies.^  The  reliance  on  the  course  of  the  post  is 
most  conspicuous  in  suits  to  charge  drawers  and  indorsers  of  com- 
mercial paper.^  The  course  and  custom  of  trades  and  classes  run 
through  every  department  of  society,  giving  a  construction  to  their 
w^ords  and  conduct,  and  charging  them  with  notice  and  knowledge. 
Where  a  bank  discounts  a  note  on  certain  parties,  as  banks  do  not 
usually  buy  paper  of  insolvents,  in  the  absence  of  proof  it  must  be 
presumed  that  the  bank  did  business  as  such  business  is  usually 

"Lang  V.  Hickingbottom,  28  Miss.  'People    v.    Hammond,    132    Mich. 

772.  422.  93  N.  W.  1084  :  Western  Twine  Co. 

''^  Willaner  v.  Fellows,  48  Wis.  105.  v.  Wright.  11  S.  D.  521,  78  N.  W^  942; 

'Stark    Ev.    356.     And    see   2    Ev.  Eppinger  v.     Scott,  112  Cal.  369,  42 

Poth.  334,  No.  16,  §  14.  P.   301.   53   Am.   St.   Rep.   220,  44   P. 

=  Dick  V.  Zimmerman.  207  111.  636,  723;      Perrv     v.     German     American 

69  X.  E.  R.  754;  Merchants  Exchange  Bank,  53  Xeb.  89,  73  X.  W.  538,   68- 

Co.   V.   Sanders    (Ark.,     1905),   84   S.  Am.  .St.  Rep.  593. 

W.    786;   Planters   Mutual    Insurance  *  De  Forest  v.   Hunt,   8   Conn.    179. 
Ass'n  V.  Green,  72  Ark.  305,  80  S.  W. 
151. 


Sec.  71.]  Presumptions.  237 

done,  and  that  the  parties  whose  notes  were  discounted  were 
solvent.^  It  has  been  held  that  the  officers  of  an  insurance  company 
should  be  presumed  to  be  cognizant  of  the  marine  intelligence  con- 
tained in  a  newspaper  taken  at  the  office,  especially  that  which 
relates  to  their  own  port-^  So,  that  a  client,  resident  abroad,  has 
left  all  material  papers  with  his  attorney,  who  defends  his  cause 
in  England ;  but  not  if  he  resides  in  England ;  and  in  no  case,  if 
the  paper  is  not  obviously  material.^  So,  that  all  the  partners  may 
have  access  to  and  know  the  contents  of  partnership  books,  though 
this  may  be  repelled  by  circumstances.^  So,  that  a  bank  stock- 
holder is  entitled  to  a  certificate  of  ownership,  as  it  is  the  habit 
of  nearly  all  banks  to  give  this.®  Presumptions  also  arise  from  the 
state  of  society.  In  a  slaveholding  State,  formerly,  a  person  bear- 
ing a  black  complexion  was  presumed  to  be  a  slave ;  though  other- 
wise of  a  yellow  or  mulatto.^*'  While  in  'New  York,  where  slavery 
yet  barely  lingered,  and  a  majority  of  blacks  were  free,  the  same 
presumption  was  denied,  even  from  a  plain  African  color  and 
features. ^^  The  wife,  in  the  husband's  absence,  is  presumed  to 
have  been  left  an  agent  for  the  hiring  out  of  his  horses. ^^  A 
servant  by  the  year  having  left  her  service  a  considerable  time, 
the  presumption,  in  England,  is  that  her  wages  were  paid.^^  A 
fortiori  when  the  service  is  in  a  factory,  where  the  custom  is  to 
pay  weekly.^* 

The  latter  case  comes  rather  to  the  practice  of  individuals,  con- 
cerning which  there  are  various  cases.  Only  some  few  of  the 
modern  ones  will  be  given.  A  man  allowing  his  friend  repeatedly 
to  forge  his  name  upon  commercial  paper,  by  submitting  to  have 
the  paper  enforced,  is  held  incapable  of  defending  against  subse- 
quent forgeries.^^  The  habit  of  the  retailer  to  charge  interest  after 
ninety  days  is  held  to  bind  the  customer,  who  shall  be  presumed  to 

°  German  Security  Bank  v.   Colum-  "Rogers     v.     Berry,     Wash.     Circ. 

bia     Finance    and     Trust     Co.    (Ky.,  June,  1812,  Cor.  Yates,  J.,  MS  ;     S. 

1905),  85  S.  W.  761.  C,  but  not  S.  P.,   10  John.    (K  Y.) 

"Green  v.   Merch.   Ins.   Co.   of  New  132. 

Bedford,   10  Pick.    (Mass.)    402.  "Church    .v     Landers,     10     Wend. 

'Vice  V.  Anson,  3  C.  &  P.  19.  (N.  Y.)    79,  80. 

'  United  States  Bank  v.  Binney,  5  "  Sellen  v.  Norman,  4  C.  &  P.  80. 

Mas.    (U.  S.)    176.  '*  Note    a    to    Sellen    v.    Norman, 

°  Hussey  v.  Man.  &  Mech.  Bank  of  •  supra. 

Nantucket,  10  Pick.    (Mass.)    415.  ^^  Weed  v.  Carpenter,  4  Wend.    (N. 

"Scott  V.  Williams,  1  Dev.  (N.  C.)  Y.)   219. 
336. 


238  Evidence.  [Chap.  3 

know  the  habit.^*  So,  the  practice  of  a  porter  to  a  bank  as  to  the 
time  of  presenting  checks-^''  The  practice  of  clerks  in  a  counting- 
house  as  to  mailing  letters.^^  And  the  habit  of  an  attorney's  office, 
as  to  the  preparation  and  service  of  notices  to  quit.^^ 

From  the  custom  of  parents  to  furnish  their  daughters,  on  mar- 
riage, with  outfits,  the  delivery  of  property  by  a  parent  to  a 
daughter,  on  the  occasion  of  her  marriage,  without  explanation, 
wdll  be  presumed  to  be  a  gift.^*^    So,  if  some  time  after  marriage.^^ 

So  things  are  held  to  be  legally  and  properly  in  their  existing 
state,  until  the  contrary  is  shown ;  as  if  a  person  is  in  possession  of 
property,  the  presumption  is  that  he  is  the  rightful  owner.^^ 

Litigants  owe  the  duty  of  assisting  in  every  legitimate  way  in 
the  elucidation  of  the  truth.  When  a  defendant  can  by  his  own 
testimony  throAv  light  upon  matters  at  issue,  necessary  to  his  de- 
fense and  peculiarly  within  his  own  knowledge  if  the  facts  exist^ 
and  fails  to  go  upon  the  witness  stand,  the  presumption  is  raised, 
and  will  be  given  effect  to,  that  the  facts  do  not  exist.  Where  one 
of  the  parties  to  a  suit  has  more  means  of  knowledge  concerning  a 
matter  to  be  proved  than  the  other  the  onus  is  on  him.  So,  where 
the  defendant  in  a  suit  to  recover  money  is  charged  with  over- 
drawing his  account  and  he  does  not  go  upon  the  stand  to  rebut  the 
proof  offered  by  the  bank  it  will  be  presumed  that  he  has  no  ex- 
planation to  offer.^^  Where,  in  an  action  for  personal  injuries  by 
one  run  over  by  an  electric  car,  the  defendant  company  fails  to 

^«M'Allister  v.  Reab,  4  Wend.    (N.  "2  Ev.  Poth.  333,  No.  16,  §  14;   1 

Y  )    483    490  l^oni.  b.  3,  tit.  6,  §  4,  art.  1 ;  Living- 
'"  Merchant's'     Bank    v.     Spicer,     6       ston  v.  The  Peru  Iron  Co.,  9  Wend. 

Wend.    (N.  Y.)   443.  (N.  Y.)  520,  521;   Bell  v.  Com     1  J. 

"Toosev   V.   Williams,   1   M.   &  M.  J.     Marsh.     (Ky.)     550;      Fowke    v. 

129  Darnell,  5  Litt.    (Ky.)    319;   Cook  v. 

"'Patteshall  v.  Turford,  3  B.  &  Ad.  Wilson,  Litt.  Sel.  Cas.    (N.  Y.)    439; 

89Q  Schermerhorn    v.    Van    Volkenburgh, 

="' Smith    V.    Montgomery,    5    Mon.  11    John.    (N.   Y.)    529;   Jackson    ea; 

(Kv  )    502;     Bell  v.  Strother,  3  Me-  clem.  Glover  v.  Winslow,  9  CoW.    (N. 

Cord    (S    C)     207,  210;      Johnson  v.  Y.)    13;      Jackson   ex   dem.  Klock  v. 

Billiard,  1  Bay   (S.  C),  232;   league  Rightmyre,    10    John.     (N     Y  )     314; 

V  Griffin,  2  Nott  &  McCord  (S.  C),  Smith  v.  Lorillard,  10  John^  <^-  ^^ 
93 ;  De  Graffenried  V.  Mitchell,  3  Mc-  338;  Ricard  v.  Williams,  /  ^^Jieat. 
Cord  (S.  C),  506:  Bvrd  v.  W^ard,  4  (U.  S.)  59;  Jackson  eo;  dem.  W i  1- 
McCord   (S    C  )    '^'^S  '  ianis  v.  Miller.  6  Cow.    (N.  It.)    iol; 

"  M'Cluney  V.'  Lockhart,  4  McCord  Campbell  v.  Roberts,  3  Marsh.    ( Ky. ) 

(S.  C),  251.     See  1  Com.  b,  13,  tit.  623;  Riley  v.  Million,  4  J.  J.  Marsh. 

6    §   4.  art.   7,  that  persons  shall  be  (Ky.)    395. 

presumed   to    act    according   to   their  "  Bastrop  State  Bank  v.  Levy,   106 

principles  and  customs.  La.  586,  31   So.   164. 


Sec.  71.]  Presumptions.  239! 

call  the  motorman  of  the  car,  this  raises  a  presumption  that  his 
testimony  if  introduced  would  have  been  unfavorable.^* 

So  the  law  presumes  that  a  fact  continuous  in  its  character,  still 
continues  to  exist,  until  a  diange  is  shown;  as  a  partnership;^'- 
or,  within  certain  limits,  that  a  life  continues.^®  So  that  a  legal  or 
actual  possession  continues.^^  That  a  corporation  continues  ta 
exist.^^  That  an  entry  and  ouster  by  a  landlord  upon  his  tenants 
continues,  till  a  restoration  is  shown. '^ 

Yet  a  written  admission  that  the  defendant  was  editor  on  one 
day,  was  held  at  nisi  prius  no  evidence  that  he  was  editor  on  a 
subsequent  day.^*'  And  admitting  insolvency  at  one  time  was 
denied  as  evidence  that  it  existed  a  considerable  time  after.^^ 

Bad  character  is  presumed  to  continue ;  and  a  gambler  to  con- 
tinue a  gambler.^^ 

So,  everything  which  happens  naturally  and  commonly  is  taken, 
as  true  ;  as  that  a  father  loves  his  children.^^  So  of  fraternal  affec- 
tion, for  where  a  younger  brother  entered  on  the  land  which  de- 
scended to  the  elder  brother,  in  his  absence,  this  was  held  not  to  be 
adverse,  because  of  the  relation  between  them.^*  So  of  things  hap- 
pening naturally ;  a  collateral  relation  claiming  by  descent  from  a 
decedent  advanced  in  life,  must  prove  that  he  died  icithout  issue, 
which  will  not  be  presumed."^  And  on  the  other  hand,  so  amply 
have  medical  science  and  general  observation  borne  testimony  to 
the  obstinacy  of  a  settled  or  habitual  derangement  of  the  intellect, 
that  semel  furandihus  semioer  furandihus,  praesumitur}^ 

Innocence,  as  being  the  more  natural  and  usual  state,  is  always 

"  Fonda  v.  St.  Paul  City  Ry.  Co.,  "  1  Dom.  b.  3,  tit.  6,  §  4,  art.  7. 

71  Minn.  438,  70  Am.  St.  Rep.  341,  "  Gilb.    Ten.    28;      MagoVs    Case, 

74  X.  W.  166.  Latch,  08. 

"  1   Stark.  Ev.   36.  ''  Dudley      v.      Grayson,      6      Mon. 

="Innes     v.     Campbell.     1      Rawle  (Ky. )   259. 

.  (Penn.),    373.     And   see  2   Ev.   Poth.  ^^  Stevens   v.    Van    Cleve,    4    Wash.. 

333.  No.  16,  §  14.  (U.   S.    C.   C.)    202;      Van    Dusen   v. 

=■  Bayard's     Lessee     v.     Colefax,    4  Van    Dusen,    o    John.    (N.    Y.)     144; 

Wash.    (U.  S.  C.  C.)    38.  Caldwell    v.    King,    4    Cow.     (N.    Y.) 

=«  People     V.      Manhattan      Co.,      9  207 :      Attorney-General   v.   Paruther, 

Wend.   (N.  Y.)   351.  3  Bro.    (U.  S.  C.  C.)  441,  443:   White 

=^»  Lewis  V.  Paine,  4  Wend.   (X.  Y.)  v.   Wilson,    13   Ves.   87,   88;   Hoge   v. 

423.  429.     And   see  Miller  v.   Porter,  Fisher,    1    Pet.    (U.    S.    C.    C.)     163; 

4  Wend.    (X.  Y. )   672.  Vance  v.  Com.,  2  Va.  Cas.    132;   Lee 

^'"Macleod    v.    Wakely,   3   C.    &   P.  v,  Lee,  4  M'Cord    (S.  C),   189:   Kin- 

311.  loch  V.  Palmer,  1  Rep.  Const.  Ct.   (S^ 

"  Hume  V.  Long,  6  Mon.   (Ky.)   116.  C.)   225. 

2=McMahon    v.    Harrison,    6    N.   Y. 
443. 


240  Evidence.  [Chap.  3 

presumed,  until  rebutted."  And  so  that  a  wife  accompanying  her 
husband  in  the  commission  of  crime,  acts  under  his  coercion,  and 
consequently  without  a  guilty  intent.^*  But  this  presumption  may 
be  rebutted  by  evidence  that  the  wife  was  an  active  and  willing 
participator  in  the  crime  and  so  jointly  liable.^  So  a  minor  is 
presumed  to  be  under  the  control  and  protection  of  the  parent, 
even  though  such  minor  is  out  at  hired  service.*"* 

So  every  one  is  presumed  to  take  care  of  his  own  concerns.*^ 
Hence  the  owner  and  vendor  will  be  presumed  to  know  of  obvious 
defects  in  the  things  sold ;  e.  g.,  the  adverse  possession  of  his  land 
by  another. ^^  It  is  also  a  presumption  that  he  who  pays  is  in- 
debted.*^ Thus  a  person  accepting  and  paying  a  check  has,  prima 
facie,  funds  of  the  drawer  to  that  amount.*^  A  gift  is  not  to  be  pre- 
sumed. Thus,  though  payment  may  be  presumed  after  twenty 
years,  yet  that  being  repelled,  the  law  will  not  presume  the  debt 
forgiven.*"  The  law  presumes  that  a  prebendary  de  facto  had  per- 
formed the  requisites  to  make  him  so.*^ 

Another  fruitful  subdivision  of  presumption  from  what  is 
natural  and  usual,  sanctioned  both  in  the  civil  and  common  law, 
is  the  rule  that  every  one  governs  himself  by  the  rules  of  right 
reason,  and  consequently  acquits  himself  of  his  engagements  and 
his  duty.*^  This  rule  extends  to  every  man,  both  in  his  official  and 
private  character.** 

But  although  it  is  said  that  fraud,  etc.,  are  not  to  be  presumed, 
the  student  should  be  careful  to  remember  that  this  is  predicable  of 
those  acts  only  which  stand  alone.  Xot  that  fraud,  like  crime,  may 
not  be  made  out  and  presumed  from  circumstantial  testimony.** 
True,  this  ought  not  to  be  slight.^*^     Yet  strong  presumptive  cir- 

"  2  Ev.  Poth.  No.  16,  §  14.  "  1  Dom.  b.  3,  tit.  6,  §  4,  art.  7. 

''Rex  V.  Knight,  4  C.  &  P.  116.  *»  Bank  of  the  U.  S.  v.  Dandridge, 

"Comm.  V.  Adams,  186  Mass.  101,  12  Wheat.   (U.  S.)   69,  70.       And  see 

71  N.  E.  78.  Ballou  v.  Campbell,  5  Wend.   (X.  Y.) 

^  Millar  V.  Thompson,  1  Wend.   (N.  572;      Colviii     v.     Carter.     4     Ham. 

Y.)   447.  (Ohio)    354:   Fridge   v.   Tlie   State,   3 

"1  Dom.  b.  3,  tit.  6,  §  4,  art.  7.  G.    &    J.     (Md.)     103:   Whittlesey    v. 

"Lane  v.  Shears,  1  Wend.   (N.  Y.)  Starr,  8  Conn.   134;  Truwhit  v.  Du- 

433.  pree.  2  C.  &  P.  557. 

"  1  Dom.  b.  3,  tit.  6,  §  4,  art.  7,  10;  ^^  Per   Lord    Hardwicke.    in    Aston 

James  v.  Biou,  2  Sim.  &  Stu.  606.  v.   Aston,    1    Ves.    268:      Watkins   v. 

"State  Bank  of  North  Carolina  v.  Stockett.  6  H.  &  J.   (Md.)   435;  Brog- 

Clark,   1   Hawks    (N.  C),  36.  den  v.  Walker,  2  id.  292. 

"Potter  V.  Titcomb.  7  Me.  302.  ^"Caldwell    v.    Benedict,    8    Mart. 

*«Dr.    Sherard's   Case,   cited   2    Bl.  (La.)    454. 
853. 


Sec.  71.]  Presumptions.  241 

cumstances  indicating  fraud,  will  outweigh  positive  proof  against 
it.^^  Indeed,  so  common  and  obvious  are  these  circumstances  in 
some  cases,  as  where  property  is  transferred  in  fraud  of  creditors, 
that  the  professional  reader  can  find  ample  illustration  in  his  own 
recollection.  The  Court  of  Chancery  constantly  presumes  fraud 
from  certain  confidential  relations,  as  that  of  trustee  and  cestui 
que  trust,  principal  and  agent,  etc.,  existing  between  the  parties  in 
respect  to  the  subject-matter  of  the  contract  ;'^^  a  principle  which 
constitutes  an  important  distinction  between  the  jurisdiction  of 
-chancery  and  the  courts  of  common  law.^^ 

A  voluntary  conveyance  by  a  debtor  to  a  trustee  for  the  benefit 
of  his  wife,  is  deemed  fraudulent  and  void,  as  against  existing 
<3reditors  ;^'*  to  render  a  deed  voluntary,  it  must  be  without  any 
the  least  valuable  consideration  ;  if  given  for  any  the  least  valuable 
consideration,  the  question  whether  it  is  fraudulent  as  to  creditors 
is  one  of  fact  for  a  jury.^^  Even  a  voluntary  conveyance  from  a 
parent  to  his  child  by  way  of  advancement,  though  presumed 
fraudulent  as  against  existing  creditors,  may  be  upheld  where 
the  presumption  is  repelled  by  circumstances  or  by  positive  evi- 
denced^ The  intent  to  defraud  need  not  be  shown  by  direct  evi- 
dence. A  conveyance  by  the  father  to  his  son  of  all  his  property, 
in  part  consideration  of  an  unliquidated  indebtedness  to  him  for 
several  years'  labor,  and  in  part  to  provide  for  his  own  and  his 
wife's  future  support,  the  son  to  pay  all  his  debts  except  a  con- 
tingent liability  by  indorsement,  the  whole  consideration  being 
much  less  than  the  value  of  the  property  conveyed,  is  fraudulent 
and  void,  as  against  creditors.^^  A  sale  to  an  infant  partly  on 
credit,  made  by  a  firm  in  embarrassed  circumstances,  is  not  neces- 
sarily fraudulent  and  void  as  against  creditors. ^^  To  avoid  a  vol- 
untary conveyance,  as  against  creditors,  it  is  not  necessary  that 
the  debtor  should  be  insolvent,  or  believe  himself  to  be  so,  at  the 
time  of  the  grant ;  it  is  sufficient  if  his  solvency  depends  upon  his 
miccess  in  business,  in  a  pending  speculation.^^     When  the  con- 

"The  Short  Staple,  1  Gal.   (U.  S.)  ^Maekson  v.    Seward,   5   Cow.    (N. 

104.  y.)    67. 

"^Gallatian  v.  Cunningham,  8  Cow.  °« Van  Wvck  v.  Seward.   18   Wend 

<N.  Y.)    361.  (N.  Y.)  375. 

"  Caldwell  V.  King,  4  Cow.   (N.  Y.)  "Robinson    v.    Stewart,    10    N.    Y 

■207.  189. 

"Read  v.  Livingston,  3  Johns.  Ch.  =^  Matthews  v.  Rice,  31  N.  Y.  457. 

<(N.  Y.)    481.  '' Carpenter  v.  Roe,  10  N.  Y.  227. 
16 


242  Evidence.  [Chap.  3 

veyance  is  made  by  a  man  in  prosperous  circumstances,  and  the 
gift  is  only  a  reasonable  provision  for  his  wife  or  children,  which 
leaves  him  fully  able  to  discharge  all  his  debts,  the  presumptive 
evidence  of  fraud  is  met  and  repelled.^"  The  fraud  which  must 
be  alleged  and  proved,  may  be  established  by  facts  and  circum- 
stances f^  if  not  inferable  from  the  circumstances,  the  conveyance 
will  not  be  invalidated  by  a  subsequent  inability  to  pay  an  exist- 
ing debt.^^ 

In  an  action  for  damages  for  inducing  th&  plaintiffs  to  sell  and 
deliver  goods  by  false  and  fraudulent  representations,  it  seems 
that  the  plaintiff  will  not  be  allowed  to  testify  in  answer  to  a 
question  by  his  own  counsel,  that  he  sold  and  delivered  the  goods 
relying  on  the  truth  of  the  defendant's  representations  f^  his  in- 
tention and  motives  are  in  issue  and  so  are  the  representations 
themselves;  his  acts  must  declare  his  intent,  as  in  the  case  of  a 
voter  depositing  a  written  ballot.^* 

So  a  conspiracy  may  be  proved  by  circumstances,  among  which 
are  the  acts  of  the  parties  in  doing  the  injury  which  is  the  alleged 
object  of  the  conspiracy.^"* 

Again :  men  are  presumed  to  act  according  to  their  own  inter- 
est.®* A  tenant  in  tail  pays  off  an  incumbrance  on  the  estate. 
Why  ?  In  order  to  exonerate  it ;  for  he  can  at  any  time  obtain  the 
fee  simple  in  another  form,  and  therefore  has  no  interest  in  keep- 
ing it  on  foot  to  protect  the  estate,  or  enlarge  it,  or  to  reimburse 
himself.  Otherwise  of  a  tenant  for  life,  who  has  but  a  temporary 
interest.  He  cannot  save  himself  without  the  incumbrancer's 
place,  which  chancery  will  give  to  him,  with  all  the  incumbrancer's 
rights  and  remedies,  upon  the  presumption  that  the  tenant  in- 
tended the  apparent  payment  as  an  act  of  purchase.  And  so  of  the 
like  cases." 

•0  Babeock  v.  Eekler,  24  N.  Y.  623 ;  «'  Finch's  Law,  37. 

Hinds'     Lessees     v.     Longworth,     11  ^^  Per  Lord  Thurlow,  C,  in  Coun- 

Wheat.    (U.  S.)   199.  tess  of  Shrewsbury  v.  Earl  of  Shrews- 

"  Newman  v.  Cordell.  24  X.  Y.  623;  bury,   1   Ves.   Jr.  '227,   233;   Kirkham 

Waterburv   v.    Sturtevant,    18    Wend.  v.    Smith,    1   Ves.   258;    Amesbury   v, 

(NY)    353.  Brown.  1  Ves.  477:  Jones  v.  Morgan, 

«  Newman  v.  Cordell,  24  N.  Y.  623.  1   Bro.  C.  C.  206,  218;    Ware  v.  Pol- 

"3  Shaw  V.   Stine,  8  Bosw.    (N.  Y.)  hill.    11   Ves.   257;    St.   Paul   v.   Lord 

157.  Dudley,    15    Ves.    167;    Redington    v. 

"People  V.  Saxton,  22  N.  Y.  309.  Redington,  1  B.  &  B.   131,  141;   Earl 

*' Jones  V.  Becker,  7  Cow.    (N.  Y.)  of     Buckinghamshire    v.     Hobart,     a 

445.  Swanst.  186. 


Sec.  71.] 


Presumptions, 


243 


This  presumption,  like  any  other,  may  in  various  ways  be  re- 
pelled.«« 

Other  presumptions  arise  from  the  nature  and  general  incidents 
of  property.  To  the  ownership  of  lands,  certain  rights  and  privi- 
leges are  annexed  de  communi  jure;  though  not  so  inseparable  but 
that  they  may  be  disannexed,  and  vested  in  another.     Thus  the 


«8Per  Lord  Eldon,  C,  in  St.  Paul 
V.  Viscount  Dudley,  15  Ves.  173; 
Jones  V.  Morgan,  1  Bro.  C.  C.  206; 
Lady  Shrewsbury  v.  Lord  Shrews- 
bury, 3  Bro.  C.  C.  126;  Redington  v. 
Kedington,  1  B.  &  B.  143;  Windham 
V.  Lord  Egremont,  Anibl.  753;  Kirk- 
ham  V.  Smith,  1  Ves.  258;  Amesbury 
V.  Brown,  1  Ves.  480;  Earl  of  Buck- 
inghamshire V.  Hobart,  3  Swanst. 
186;  Forbes  v.  Moffat,  18  Ves.  384. 
And  see  Gardner  v.  Astor,  3  John. 
Ch.   (N.  Y.)   53,  55. 

The  modern  cases  have  arisen 
mainly  upon  mortgage  transactions. 
Thus,  where  the  equity  of  redemp- 
tion was  devised  to  the  mortgagee, 
it  was  held  that  this  union  of  estates 
should  extinguish  the  mortgage,  if 
that  result  would  be  indifferent  to 
the  devisee;  otherwise  if  he  had  an 
interest  to  keep  it  on  foot ;  and  so  of 
other  similar  eases.  Forbes  v.  Mof- 
fat, 18  Ves.  384;  Gibson  v.  Crehore, 
5  Pick.  (Mass.)  146;  Freeman  v. 
Paul,  3  Me.  260;  Starr  v.  Ellis,  6 
John.  Ch.  (N.  Y.)  393;  Mills  v. 
Comstoek,  5  id.  214;  Lockwood  v, 
Sturdevant,  6  Conn.  372.  Prima 
facia,  it  is  an  extinguishment;  and 
the  one  who  pays  must  show  that  his 
interest  was  to  have  the  mortgage 
kept  on  foot.  Gardner  v.  Astor,  3 
John.  Ch.  (N.  Y.)  53;  Burnet  v. 
Deniston,  5  id.  35;  Starr  v.  Ellis,  6 
id.  393.  Thus,  where  one  owning  the 
equity  of  redemption  in  fee,  paid  off 
a  mortgage  in  which  the  mortgagor's 
wife  joined,  and  which  payment,  if 
allowed  to  operate  as  an  extinguish- 
ment, would  let  in  her  dower  against 
the  owner,  discharged  from  the  mort- 
gage, the  latter  will  be  taken  as  still 
subsisting.  Gibson  v.  Chehore,  3 
Pick.  (Mass.)  475.  And  this  would 
be  so,  although  the  owner  not  only 
pays,  but  takes  a  release  from  the 
mortgagee.  Caril  v.  Butman.  7  Me. 
102;  Thompson  v.  Chandler,  id.  377. 
So  where  the  mortgagee  took  a  deed 


with  a  warranty  from  the  mortgagor, 
the  former  was  still  allowed  the  bene- 
fit of  his  mortgage,  as  against  a  prev- 
ious attaching  creditor  of  the  mort- 
gagor. Mj'ers  V.  Brownell,  D.  Chip. 
(Vt. )  488.  So  of  the  convenants  of 
title,  in  the  mortgage.  Lockwood  v. 
Sturdevant,  6  Conn.  373.  And  though 
he  takes  a  release  of  the  equity  of  re- 
demption on  his  prior  mortgage,  and 
discharges  the  debt,  this  will  not  let 
in  a  subsequent  mortgage.  Baldwin 
V.  Norton,  2  Conn.  161.  But  in  such  . 
a  case,  the  proof  of  an  interest  or  in- 
tent at  the  time  to  keep  the  mort- 
gage on  foot,  should  be  clear  and  pre- 
cise. Burnet  v.  Denniston,  5  John. 
Ch.  (N.  Y. )  35.  Where  the  intention 
is  declared  by  the  deed  to  consider 
the  mortgage  paid,  this  will  be  con- 
clusive. Wade  V.  Howard,  6  Pick. 
(Mass.)  492.  Whether  considera- 
tions of  interest  prevail  or  not,  all 
the  cases  agree  that  the  intent  may 
be  declared  at  the  time,  or  deduced 
from  various  circumstances.  James 
V.  Johnson,  6  John.  Ch.   (N.  Y.)   417. 

Upon  the  same  principle,  long  ac- 
quiescence by  one  in  the  adverse  en- 
joyment of  a  right  by  another,  leads 
to'  an  inference  that  the  former  has 
parted  with  it  in  a  legal  form;  and, 
in  time,  may  lead  to  the  presumption 
of  the  necessary  instruments  of  as- 
surance, or  of  the  requisites  to  make 
existing  assurances  valid  against  him. 
So  of  the  extinction  and  satisfaction 
of  demands,  and  the  sanctioning  of 
secondary  evidence.  Fitzhugh  v. 
Croghan,  2  J.  J.  Mar.  (Ky.)  435  to 
437,  and  Bigger  v.  Alderson,  1  Munf. 
(Va.)   54. 

Upon  the  same  principle,  it  is  pre- 
sumed that  a  man  has  adopted  or 
accepted  an  advantageous  act,  offer, 
gift,  bequest,  devise  or  conveyance, 
etc.,  until  his  positive  disclaimer  or 
refusal  is  shown.  Per  Bayley  and 
LiTTLEDALE,  J's,  in  Bailey  v.  Culver- 
well,  8  B.  &  C.  448;  Marston  v.  But- 


244 


Evide:xce. 


[Cliap.  3 


lord  of  the  manor  owns  the  soil  of  common  right ;  and  on  his  being 
proved  lord  of  the  manor,  his  ownership  of  the  soil  is  intended ; 
and  it  lies  with  the  opposite  side  to  show  that  any  part  belongs  to 
another.*^^  So  the  different  landholders  of  a  manor,  have  prima 
facie  a  right  of  common  on  the  lord's  waste ;  and  the  owner  of  the 
surface  of  the  land,  to  the  minerals  or  inferior  strata ;  the  possessor 
of  a  several  fishery  to  the  gi-oiind  covered  with  water  ;^°  and  so  of 
various  other  incidental  rights,  as  the  lord  to  the  soil  of  the  high- 
way running  over  the  waste  of  his  manor  f^  and  the  owner  of  in- 
closed land,  to  the  waste  intervening  between  that  and  the  high- 
way.'^ So  where  a  road  passes  between  the  land  of  A.  and  B., 
jmma  facie,  each  owns  the  soil  thereof,  usque  ad  filem  viaeJ^    So 


ler.  3  Wend.  (N.  Y.)  149;  Camp  v. 
Camp,  5  Conn.  291;  Townsend  v. 
Tiekell,  3  B.  &  Aid.  31,  and  the  cases 
there  cited,  particularly  Thompson  v. 
Leach,  2  Salk.  G18.  See  also  Nichol- 
son V.  Wordsworth,  2  Swanst.  30.5, 
372 ;  Adams  v.  Taunton,  .5  Madd. 
435;  and  2  Prest.  on  Abstracts,  226 
€t  seq.  This  rule  is  mainly  applied 
to  the  presumed  acceptance  by  cred- 
itors of  their  debtor's  assignment, 
in  trust  for  their  payment,  where  the 
assignment  requires  no  release  or 
other  disadvantageous  terms.  NichoU 
V.  Mumford,  4  John.  Ch.  (N.  Y.) 
522,  529;  Halsey  v.  Fairbanks,  4 
Mas.  ( U.  S. )  200.'  And  see  Brooks  v. 
Marbury,  11  Wheat.  (U.  S.)  78;  and 
M'Allister  v.  Marshall,  6  Binn. 
(Penn.)  338.  Or  to  the  assent  of  the 
assignees  or  trustees.  Wilt  v.  Frank- 
lin, 1  Binn.  (Penn.)  502.  And  see 
Lippincott  v.  Barker, 
(Penn.)  174;  Shepherd  v 
4  John.  Ch.  Rep.  130; 
Blight,  1  John.  Cas.  205; 
Barker,  12  John.  (N.  Y.) 
Cumberland  v.  Codrington,  3  John. 
Ch.  (N.  Y.)  229,  201.  But  the  doc- 
trine of  presumed  assent  in  these  par- 
ticular cases  is  received,  if  at  all, 
with  great  caution  in  Massachusetts, 
where,  to  warrant  it,  the  benefit  must 
appear  to  be  decided  and  unequivo- 
cal. Russell  V.  Woodward,  10  Pick, 
(Mass.)  408.  The  Supreme  Court  of 
that  State,  however,  applied  the  prin- 
ciple very  strongly  in  another  case, 
where  they  presumed  the  assent  of  a 
widow  to  a  testamentary  provision  in 
lieu  of  dower,  it  appearing  decidedly 
advantageous.       Merril  v.   Emery,  10 


2       Binn. 

M'Evers, 

Nelson    v. 

Weston  V. 

270 ;    and 


Pick.  (Mass.)  507.  In  England,  it  is 
held  that  one  shall  be  presumed  to 
have  adopted  an  advantageous  act 
done  by  another  as  his  assumed 
agent.  Per  Bayley  and  Littledale, 
J.J's,  in  Bailev  v.  Culverwell,  S  B.  & 
C.  448.  In  Beal  v.  Taylor,  5  Hill  (N. 
Y. ),  587,  where  a  debtor  residing  in 
Baltimore,  in  failing  circumstances, 
sent  goods  to  Taylor  &  Co..  at  New 
York,  to  be  delivered  to  plaintiff  in 
part  payment  of  a  debt  due  to  him, 
at  the  same  time  sending  to  plaintiff 
a  letter  apprising  him  of  the  fact, 
and  the  goods  were  received  by 
Taylor  &  Co.,  and  sold  within  a  few 
days,  it  was  held  that  plaintiff 
might  recover  the  value  of  the  goods 
so  sent  to  him;  that  the  arrange- 
ment being  beneficial  to  the  plain- 
tiff, his  assent  might  be  presumed, 
on  the  principle  that  a  trust  created 
for  the  benefit  of  a  third  person, 
though  without  his  knowledge,  may 
be  subsequently  adopted  and  en- 
forced by  him.  The  acceptance  of  a 
deed  delivered  to  a  stranger  for  the 
use  of  a  grantee,  will  be  presumed. 
Church  V.  Oilman,  15  Wend.  ( N.  Y.) 
050.  The  question  of  acceptance  is 
one  of  fact.  Sturtevant  v.  Orser,  24 
N.  Y.  538. 

"''Co.  Litt.  201  a,  note  1,  in  Harg. 
&  Butl.  ed. 

'"Co.  Litt.  122  a,  note  7,  Harg.  & 
Butl.  ed.;  Lofft,  304,  title,  Separate 
Fisherv;  Partheriche  v.  Mason,  2 
Chitt. '058. 

'^  Lofft,  358;    1  Roll.  Abr.  392,  1,  5. 

"Pring  V.   Pearcy,  7   B.  &   C.   304. 

■'Lofft,  359;   per  Gibbs,  Ch.  J.,  in 


jSec.  71.]  Presumptions.  245 

two  proprietors  on  opposite  sides  of  a  river  not  navigable,  that  is  to 
sav,  above  the  ebb  and  flow  of  the  tide,  own  usque  filum  aquae; 
and  the  proprietor  of  both  sides  owns  the  whole.^^ 

As  before  remarked,  these  incidental  or  presnmptive  rights  are 
not  inseparable.  The  presumption  may,  therefore,  be  rebutted.''^ 
Thus  the  presumption  that  the  right  of  minerals  accompanies  the 
fee,  may  be  rebutted  by  showing  a  user  by  others."^ 

Other  presumptions  are  founded  on  the  dictates  of  prudence  and 
discretion ;  as  that  regular  and  ordinary  means  are  adopted  for  a 
given  end.  Hence,  where  the  means  calculated  to  attain  a  certain 
end  appear  to  have  been  adopted,  or  the  end  itself  appears  to  have 
been  attained,  a  technical  and  particular  completion  in  the  one 
case,  or  all  the  ordinary  previous  steps  in  the  other,  need  not  be 
proved,  but  will  be  presumed;  especially  if  the  absence  of  particu- 
lar proof  is  accounted  for.  Thus  proof  of  sealing  and  delivery 
without  the  signing  of  a  deed,  the  usual  place  on  the  deed  for  this 
being  mutilated,  would  doubtless  warrant  the  presumption  that 
the  deed  was  signed.  So  if  the  deed  is  lost.  "So  where  the  attesta- 
tion says  only  "  sealed  and  delivered,"  in  a  case  where  you  are  put 
to  proof  of  the  subscribing  witness's  handwriting ;  or  where  there 
is  no  attesting  witness  ;  but  you  prove  the  parties'  hand  to  a  paper 
sealed,  with  the  usual  attestation,  "  sealed  and  delivered,"  the 
paper  being  in  your  hands  and  for  your  benefit ;  or  in  the  ordinary 
case  of  establishing  a  contract  by  simply  proving  the  signature  to 
be  in  the  handwriting  of  the  party  to  be  charged.  In  all  these 
cases  something  is  wanting  in  the  direct  proof;  the  handwriting  in 
one  case,  the  sealing  in  another,  the  delivery  in  another,  yet  the 
facts  which  are  proved  lead  irresistibly  to  the  presumption  that 
the  other  acts  requisite  to  give  validity  to  the  instrument  were,  in 
truth,  done,  and  the  law  applies  the  maxim,  Omnia  praesumunhir 
rede  solenmiter  esse  acta,  donee  prohetur  in  contrarium?^  This  is 
a  maxim  of  extensive  application  in  the  law  of  presumptive  evi- 
dence; and  where  direct  proof  is  beyond  the  party's  reach,  or  in 

Grose  v.   West,   7   Taunt.    41;      Wat-  J.  J.   Mar.    (Ky.)    158;   and  Scott  v. 

rous     V.     Southworth,    5    Conn.    305;  Wilson,  3  N.  H.  321. 

Cook  V.  Green,  11   Price,  736.  "=  1    Roll.    Abr.    401;   16    Ves.    390; 

'"Ex   parte   Jennings,   6    Cow.    (N.  Co.    Litt.    122    a,    note    of    Harg.    & 

Y.)    518;   2   Dane's   Abr.    692,    §    13;  Butl.;      Lade    v.     Shepherd,     2     Str. 

Waters    v.    Lilly,    4    Pick.     (Mass.)  1004;   Grose  v.  West,  7  Taunt.  39. 

145;      Commonwealth    v.    Chapin,    5  "  Rowe  v.  Grenfel,  Ry.  &  M.  396. 

Pick.    (Mass.)    199;   Mason  v.  Hill,  3  "See   12  .Wheat.   70. 
B.   &  Ad.   70;   Fleming  v.   Kenney,  4 


246  Evidence.  [Chap.  3 

cases  where  it  is  not  reasonably  to  be  expected,  comes  in  aid  of 
numerous  defects.^^ 

Where  the  bargain  and  sale  for  a  year  and  the  release  bear  date 
the  same  day,  the  former  will  be  presumed  to  have  been  first 
executed,  this  course  having  been  necessary  to  give  them  validity  as 
a  conveyance.  And  so  of  any  other  and  like  modes  of  conveyance.''' 
So  where  a  witness  attested  only  the  last  sheet  of  a  will,  all  the 
sheets  were  presumed  to  have  been  in  the  room.*°  Or  if  all  the  wit- 
nesses are  dead,  a  regular  execution  is  intended  from  proof  of  their 
handwriting.^^  So  a  deed  will  be  presumed  to  have  been  delivered 
on  the  day  of  its  date.^^  And  having  a  seal  at  the  trial,  will  be  pre- 
sumed to  have  had  one  when  delivered,  although  the  subscribing 
witness  remembers  no  seal.^^  In  the  absence  of  a  corporate  seal, 
no  presumption  could  arise  that  a  corporate  deed  was  executed  by  ■ 
autliority,  and  it  is  incumbent  on  the  party  relying  on  it  to  show 
it  was  sig-ned  by  persons  authorized  to  do  so.^^  A  patent  from  the 
State  will  be  presumed  to  have  borne  the  great  seal,  although  the 
exemplification  is  marked  "  L.  S,"  only.^^  And  after  a  few  years' 
possession  and  exercise  of  corporate  rights  by  an  ecclesiastical  cor- 
poration, formed  under  the  Xew  York  statute,  it  will  be  presumed 
that  the  proper  officer  was  present  at  the  formation,  although  the 
certificate  of  the  proceedings  omits  to  mention  that  circumstance.*® 
So  a  judicial  confirmation  of  a  sale  made  under  a  decree,  by  a 
trustee,  was  presumed."  A  contract  by  A.  to  work  for  B.,  and 
another  bearing  the  same  date,  and  having  the  same  subscribing 
witness,  by  which  B.  promised  to  pay  A.  a  certain  sum  in  a  cer- 
tain way,  were  intended  the  one  to  form  the  consideration  of  the 
other.^^ 

It  has  been  a  matter  of  much  litigation,  how  far  the  maxim, 

"M'Queen    v.    Farquhar,    11    Yes.  Brice   v.    Smith,   Willes,    1;    Croft   v. 

467;   Burrowes  v.  Lock,  10  Ves.  470;  Pawlet,  2   Str.   1109. 

Pigot   V.   Holloway,   1   Binn.    (Penn.)  *- Breckenridges  v.  Todd,  3  Monroe, 

43G;   Rex  v.  Catesby,  2  B.  &  C.  814;  54.  55:  Shep.  Touch.  72. 

Gaston   v.    Mason,  'l    X.   J.    Eq.    10;  *^  Ball  v.  Taylor,  1  C.  &  P.  417. 

Curtis  V.  Hall,  4  N.  J.  L.  148;   New-  «  Bale  v.   Todd    (Ga.,   1905),  50  S. 

bold  V.  Lamb,  5  N.  J.  L.  449;   Chur-  E.  990. 

chill    V.    Speight.    2    Hayw.    (N.    Y.)  '=  Williams    v.    Sheldon,    10    Wend. 

338;   Rex.   v."^  Witchurch,   7   B.   &    C.  (X.  Y.)   654. 

573.  '"All    Saints'   Church   v.    Lovett,    1 

"Barker  v.   Keate.   1    Freem.   251;  Hall    (X.  Y.)    191. 

Atkvns  V.  Horde.   1  Burr.   106.  *' Shilknecht    v.    Eastburn's    Heirs, 

««Bond  V.   Seawell,   3   Burr.    1773.  2  G.  &  J.    (Md.)    114. 

*' Hands    v.    James,    4    Conn.    531;  ''^Aldridge     v.     Birney,     7     Monr. 

(Kv.)   344,  347. 


Sec.  71.] 


Presumptions.  ^** 

Omnia  praesicmuniur  rite  esse  acta,  shall  prevail  in  establishing 
the  iurisdiction  of  a  court  or  magistrate.    In  England  it  is  not  ad- 
missible as  to  the  facts  which  constitute  a  special  and  limited  31ms- 
diction/^  although  it  is  otherwise  of  courts  having  general  jurisdic- 
tion    In  the  former  case,  in  order  that  the  party  may  avail  himself 
of  the  proceeding,  he  must  not  only  plead    but  prove  the  facts 
which  go  to  the  question  of  jurisdiction.-    But  m  Massachusetts, 
there  appearing  on  the  files  of  the  Probate  Court  a  record  of  as- 
sio^ent  of  dower  regailar  on  its  face,  the  Supreme  Court  intended 
that  a  regular  application  by  the  widow  was  made,  or  her  assent 
Kiven  for  that  purpose.^^    And  in  Pennsylvania  the  maxim  was  ex- 
pressly applied  to  support  the  summary  proof  of  a  will  m  a  County 
Court  of  Virginia;  the  court  saying,  ''  To  the  act  of  the  County 
Court  in  holding  jurisdiction  of  the  subject  of  probate  the  maxim. 
Omnia,  etc.,  is  as    applicable  as  the  judicial  proceedings  of  our 
own  State  "^^  In  New  York,  as  to  these  foreign  proceedings,  which 
are  unknown  to  the  common  law,  the  cases  appear  to  conflict.     In 
one,  which  was  the  case  of  a  New  Jersey  attachment  of  a  vessel  by 
a  material-man,  it  was  sustained  on  the  presumption  tha    the  law 
of  that  State  warranted  the  proceeding.^^     But  in  another  case, 
which  related  to  a  specific  delivery  of  real  estate  under  an  execu- 
tion, in  satisfaction  of  a  judgment  of  Vermont,  a  very  common 
proceeding  in  New  England,  it  was  placed  upon  the  groundof  a 
strictly  foreign  proceeding  unknown  to  the  common    aw,  junsdic^ 
tfon  of  whidi  must  be  shown  by  pleading  the  local  statute  and 
proving  it.^^    But  by  this  and  several  other  cases,  it  is  agreed  that 
upon  a'common-law  question  that  law  shall  be  presunied  to  prevail 
in  a  neighboring  State  until  the  contrary  be  shown.       This  sub- 
ect,  hoiver,  belongs  more  properly  to  the  future  head  which 
reats  of  the  mode  of  proving  domestic  and  forei^  judgments  and 
other  judicial  proceedings.     It  will  be  presumed  that  a  commis- 
sion has  been  returned  by  mail  as  required  by  statute  and  opened 
by  the  justice  issuing  it  ;^«  that  arbitrators  have  acted  withm  the 

T      •      T3^..   ,r     All  ''The    Stamford   Steamboat    Co.   v. 

sop,     HOLROVD    J     in   Rex  v.   All  The    ^t^^^^^     ^^    ^^ 

Saints,  1  M.  &  Ry-  66b.  ^4  Holmes  v.   Broughton,   10   Wend. 

»»Rudd  V.   Johnson,   5   Litt.    (Ky.)  v  V  7^ 

19;    also  stated  supra,  pi.  9,  of  this       <  ^,- ^(^'j^;/ ^    Maxwell,  1  Mass.  103; 
note.  p.  ,         J  Legs,  8  Mass.  99. 

-Tilson    V.     Thompson,  10    Pick.       ^Vnlh  v    Barton,  25  Barb.   (N.  Y.) 

(Mass.)    359,  363.  ,       -d      i„       071 

'^  Ripple      V.      Ripple,  1      Ravvle      2/4. 
(Penn.),  386. 


248  •        Evidence.  [Chap.  3 

time  set  for  their  award,^^  on  all  the  matters  submitted  f^  that  the 
three  assessors  have  acted  together,  though  only  two  of  them  have 
signed  the  report  f^  that  the  three  commissioners  of  highways  were 
present  in  the  laying  out  of  a  private  road  •,^''^  that  an  act  shown  to 
have  been  done  was  done  at  the  right  time.^^^  But  the  law  will  not 
presume  a  fact  requisite  to  confer  jurisdiction  in  a  special  pro- 
ceeding ;^"-  though  there  is  a  presumption  in  favor  of  the  regularity 
of  the  proceedings  of  a  board  of  officers  ;^^^  and  in  favor  of  the 
jurisdiction  of  the  surrogate  over  the  estate  of  a  decedent,  after  a 
lapse  of  many  years. ^'^^ 

Other  presumptions  are  referable  to  the  policy  of  the  law.  An 
instance  under  this  head  is  the  presumption  in  favor  of  cross  re- 
mainders when  the  land  is  devised  between  two  persons  as  tenants 
in  common  in  tail,  and  the  contrary  when  between  more  than 
two.^""  This  rule  is,  of  course,  confined  to  devisees,  and  is  subject 
to  various  modifications  and  exceptions  arising  from  the  particular 
langauge  of  the  will.^°^ 

Again:  the  presumption  is,  that  money  borrowed  by  the  hus- 
band, on  the  security  of  the  wife's  real  estate,  is  appropriated 
solely  by  him,  the  money  being  under  his  absolute  control,  in  virtue 
of  the  power  conferred  by  the  marital  right. •^**^  Hence,  she  and 
her  personal  representative  have  a  right  in  equity  to  demand  of 
him  and  his  representatives,  that  his  estate  shall  be  first  applied  in 
discharge  of  the  incumbrance,  so  as  to  relieve  her  estate.^'^^  This, 
however,  being  but  an  equity_,  may  be  rebutted  by  another  equity, 

^'Owen  V.  Boerum,  23  id.   187.  710:    Cooper  v.   Jones,   3    B.   &   Aid. 

""  Ott  V.  Schroeppel,  0  X.  Y.  482.  425,   429 :    Staunton    v.   Peck,    2    Cox 

*' Doughty    V.    Hope,    3    Den.     (N.  C.   C.  8;    Watson  v.   Foxton,   2   East, 

Y.)    249.  594;   1  N.  Y.  79.  36,  40;  Roe  v.  Claj-ton,  6  East,  628; 

"°T-ucker  v.  Rankin,   15  Barb.    (N.  Gorges     v.     Webb,'    1     Taunt,     234; 

Y.)    471.  Green  v.  Stephens,   17  Ves.  64;   Com- 

^"^  Sheldon  v.  Wright,  7   Barb.    (N.  ber  v.  Hill.  2  Str.  969;  Davenport  v. 

Y.)    39.  Oldis.   1  Atk.  579;   Dyer  v.  Dyer,   19 

^"^  People  V.   City   of    Brooklyn,   21  Ves.   612;    Jones  v.   Randall,    1   J.  & 

Barb.    (N.  Y.)    484.  W.   100. 

"5  People    V.    Carpenter,    24    N.    Y.  ^''' Earl    of    Kinnoul    v.    Money,    3 

86.  Swanst.    208,  note. 

"^  Bolton    V.     Brewster,     32     Barb.  "*  Neimcewicz    v.     Gahn,     3    Paige 

(X.  Y.)    389.  (N.   Y.),   614;    Tate  v.  Austin,   1   P. 

^"°2  Bl.  Com.  381.  Wms.  264;   Lord  Huntingdon's   Case, 

""See  Perry  v.  White,  Cowp.   777;  2  Vern.  437;   Astley  v.  Earl  Tanker- 

Phipard     v.     Mansfield,     Cowp.     797,  ville.  3  Bro.  C.  545;  Earl  of  Kinnoul 

800;   Burden  v.  Burville,  2  East,  47,  v.  Money,  3  Swanst.  208,  note  a.  And 

48,     note;     Holmes     v.     Meynel,     T.  see  Pocoke  v.  Lee,  2  Vern.  604;   and 

Jones,  172;  Atherton  v.  Pye,  4  T.  R.  _  Clinton  v.  Hooper,  1  Ves.  Jr.   173. 


Sec.  71.]  Presumptions.  249' 

which  may  be  set  up  by  parol  proof.^"^  As  if  the  money  was  raised 
to  ]Day  off  her  debts  due  dum  solaj^^^  or  for  her  private  use;"^  even, 
though  she  should  afterwards  make  a  present  of  the  money  to 
him.-^^^  And  so,  in  general,  where  the  money  is  raised  partly  for 
the  use  of  each."^  Where  the  wife  purchases  a  chattel  on  her  jDer^ 
sonal  credit,  and  the  husband  takes  it  into  his  possession  and  uses 
it,  the  title  is  held  to  vest  in  him.^^^ 

In  some  cases,  the  mere  w^ant  of  presumption  on  the  one  side 
is  a  sufficient  presumption  in  favor  of  the  other ;  for  wherever  the 
nature  of  a  subject  leaves  it  perfectly  indifferent  whether  a  given 
fact  does  or  does  not  exist,  the  partj^  who  founds  his  claim  or  his 
defense  upon  the  existence  of  it,  must  remove  that  indifference; 
and  the  opposite  party  may  rely  upon  the  single  argument  that 
nothing  appears  in  opposition  to  him ;  and  that  de  non  apparenti- 
hus  et  n.o)i  existentihus  eadem  est  ratio}^^ 

A  presumption  may  be  inferred  on  any  subject.  Thus,  a  deed 
delivered  to  the  father  or  guardian  of  infants  is  presumed  to  be 
delivered  to  them."^  Knowledge  by  Congress  of  the  boundaries 
of  a  State,  and  of  its  political  subdivisions,  may  reasonably  be  pre- 
sumed. ^^^  A  woman  is  presumed  in  law  capable  of  bearing  chil- 
dren  as  long  as  she  lives,  as  far  as  age  is  concerned. ^^^  There  is  no 
presumption  of  law  or  of  fact  that  a  man  or  a  woman  is  single,  nor 
is  there  any  presumption  to  the  contrary,"^  but  every  man  is  pre- 
sumed solvent  until  proved  insolvent.-'"'^  Changes  in  form  in  an 
existing  lien  will  not,  as  a  matter  of  law,  amount  to  an  increase  of 
hazard  under  a  policy  of  fire  insurance.  The  insurer  has  the 
burden  of  proving  an  increase  of  hazard.^-^ 

Where  the  existence  of  one  fact  so  necessarily  and  absolutely 
induces  the  supposition  of  another,  that  if  the  one  is  true  the  other 

^'^^ Per  Lord  Hardwicke,  in  Earl  of  "'Coleman      v.       Coleman,       (111., 

Kinnoul    v.    Money,    3    Swanst.    202,  1905),  74  N.  E.  701. 

208,  note  a.            "  "'Virginia  v.  Tennessee,  148  U.  S. 

""Lewis    V.     Nangle,    Ambl.     1.50,-  503,  13  S.  Ct.  728. 

Earl  of  Kinnoul  v.  Money,  3  Swanst.  "'Hill  v.   Spencer,   196   111.   65,   63 

202,    note;    Baget   v.    Oughton,    1    P.  N.  E.  R.  614. 

Wms.  347.  "'Bennett    v.    State,    103    Ga.    66, 

"^Clinton    v.    Hooper,    1    Ves.    Jr.  29  S.  E.  919;  68  Am.  St.  Rep.  77. 

188.  ^^o  Warren     v.     Robison,      25     Utah 

"'  Clinton    v.    Hooper,    1    Ves.    Jr.  205,  70  Pac.  989. 

188.  ^'  Greenlee    v.    North    British    and 

"'  Lewis  V.  Nangle,  Ambl.  150.  Mercantile   Insurance    Co.,    102    Iowa 

"*Glann    v.     Younglove,     27    Barb.  427,  71  N.  W.  534;   63  Am.  St.  Rep. 

(N.   Y. )    480.  455. 

"»2  Ev.  Poth.  329,  No.  16,  §  14. 


250 


Evidence.  [Cliap.  3 


cannot  be  false,  as  where  connection  is  inferred  from  pregnancy, 
the  tenn  presumption  cannot  be  legitimately  applied ;  for  the  na- 
ture of  presumption  is,  that  it  does  not  require,  to  be  substantiated, 
but  that  it  may  be  defeated  by  positive  contradiction,  according 
to  the  maxim,  Stahitur  presumptioni  donee  prohetur  in  conr 
trarium,}^^  The  distinction  between  presumption  and  proof  is, 
that  the  one  may  be  false,  but  until  shown  to  be  so,  must  be  re- 
garded as  time;  that  the  other  (the  facts  upon  which  it  is  founded 
being  admitted)  cannot  be  otherwise  than  true.^'^ 

^»  Loflft's  Gilb.  303.  "•  2  Ev.  Poth.  329,  No.  16,  §  14. 


CHAPTER  IV. 
Hearsay  Evidence. 

Section  72.  General  rule. 

73.  What  is  hearsay. 

74.  Exceptions  t«  the  rule. 

Sec.  72.  General  Rule. 

It  is  a  universal  general  rule  that  mere  hea/rsay  evidence  is  not 
admissible  to  establish  any  specific  fact  which,  in  its  nature,  is 
capable  of  being  proved  by  witnesses  who  speak  from  their  own 
knowledge  •/  or,  in  other  words,  that  evidence,  whether  written  or 
spoken,  which  does  not  derive  its  credibility  solely  from  the  credit 
due  to  the  witness  himself,  but  rests  in  part  upon  the  veracity  and 
competency  of  some  other  person,  from  whom  the  witness  received 
the  information,  is  not  admissible  to  establish  a  substantive  fact. 
And  this  is  the  rule,  although  the  declaration  sought  to  be  proved 
was  at  the  time  when  it  was  made,  against  the  interest  of  the  per- 
son iimking  it^  and  although  no  other  evidence  can  possibly  he 
obtained^  as,  where  it  is  the  declaration  of  a  person  ivho  was  the 
only  eye  witness  to  the  transaction  and  who  is  dead,^  or  of  a  wit- 

iPafe    V     Parker,    40    N.    H.    47;  Coble  v.  McDaniel,  33  Mo.  363;  Wis- 

Scales%.  Desha,  16  Ala.  308;  Chapin  wall  v.  Kenevais,  18  Ala.  65. 

V      Taft      18     Pick.      (Mass.)      379;  ^  Mima      Queen      v.      Hepburn,      7 

Buckley 'v.  Cunningham,  34  Ala.  69;  Cranch    (U.   S.),  296;    Ferry  v.   Fry- 

Peonle  v    McCrea,   32   Cal.   98;    Pen-  stone,  2  East,  54. 

niman    v.    Patchin.    6    Vt.    325.      The  M  Phillips  Ey   214   (Am.  ed.).     In 

rule    is    of    modern    origin,    and    the  Harper    v.    Scott,     12    Ga.     125,    the 

earliest   case   in   which   it   was   acted  declaration   of   a   deceased    person   as 

upon  is  Sampson  v.  Yardlev,  2  Keb.  to  the  loss  of  a   paper  was  held   in- 

2-^3      The  leading  case  in  this   coun-  admissible  to  establish  a  ground  for 

try'  is    Mima    Queen    v.    Hepburn,    7  letting   in   secondary   evidence   of   its 

Cranch     (U     S)      290,    confirmed    in  contents ;  and  in  Smothers  v.  Mudd,  9 

Davis  V    Wood,   1   Wheat.    (U.  S.)   6,  B.  Men.    (Ky.)    490,  it  was  held  that 

and  althought  at  one  time  opposed  in  neither   a    person's    death   or   absence 

some  of  the  States,  is  now  universal-  from   the    State   could   be   proved    by 

ly  followed  in  all  of  them.  general    reputation   or   hearsay.      See 

'Gordon    v.    Bowers,    16    Penn.    St.  also  State  Bank   v.   Seawell,   18   Ala. 

2'>6-   Fitch  V.  Chapman,  10  Conn.  8;  616.     But  in  some  of  the  cases  it  is 

Bailey  v    Wood,  24  Ga.   164;   Macon,  held  that  the  death  of  a  pe-son  may 

&c     R    R    Co    V.   Davis,  27   id.   113;  btr  proved     by     hearsay,     Jackson   v. 

■'      ■  (251) 


252'  -  Evidence.  [Chap.  4 

ness  who  keeps  out  of  the  way  to  avoid  being  suopoenaed  on  the 
trialJ'  The  fact  that  the  statement  was  sworn  to  in  an  affidavit, 
or  upon  a  trial  in  another  cause,  or  that  it  has  been  made  the  sub- 
ject of  an  entry  in  an  account  or  other  book,®  or  even  though  it 
has  been  »repeated  by  one  of  the  parties,  does  not  strip  it  of  its 
character  as  hearsay  or  render  it  admissible.^ 

The  reason  for  this  rule  is,  that  such  evidence  requires  credit 
to  be  given  to  the  statements  of  a  person  who  is  not  under  the  ob- 
ligations of  an  oath  or  any  of  the  ordinary  tests  for  ascertaining 
the  truth  of  the  statement,  being  subject  neither  to  cross-examin- 
aiion  by  the  jDarty  to  be  affected  by  his  testimony,  nor  present  in 
court  so  that  his  deportment  can  be  observed,  nor  so  situated  in. 
reference  to  the  ease,  that  his  character  or  motives  can  be  investi- 
gated,^ Another  very  forcible  reason  for  the  rule  is,  that  such  evi- 
dence can  be  fabricated  with  comparative  safety  to  the  witness,  as 
he  cannot  ordinarily  be  convicted  of  perjury,  as  the  testimony  of 
two  witnesses,  or  at  least  full  proof  of  the  falsity  of  his  statement, 
is  necessary.  So.  too,  there  is  great  danger,  however  honest 
or  conscientious  the  witness  may  be,  that  the  statement  made  by 
such  person  may  have  been  imperfectly  heard  or  understood,  or 
inaccurately  remembered ;  therefore  it  would  seem  that  the  rule  is 
founded  upon  correct  principles,  and  is  sound  in  policy.  As  we 
shall  see  hereafter,  this  rule  is  subject  to  many  exceptions,  and  it 
is  sometimes  quite  difficult  to  determine  w4iether  a  given  case  comes 
w^ithin  the  rule  or  the  exception. 

Sec.  73.  What  is  Hearsay. 

Whenever  a  ivitness  states  that  of  which  he  is  not  personally ' 
cognizant,  hut  has  derived  from  some  third  person,  his  testimony 

Boneham,  15  John.   {N.  Y.)   226,  but  rich,  7  John.    (N.  Y.)    95;    Spatz  v. 

that  neither  the  time,  place  nor  man-  Lyons,  55  Barb.    (X.  Y. )   476. 

ner   of    his   death    can    be    sho^vn    by  'Woodward  v.  Paine,  15  John.   (N. 

that  species  of  evidence,   Jackson  v.  Y. )   493. 

Etz,   5    Cow.    (K   Y.)    314;    nor    can  "Churchman    v.     Lewis,    34   N.    Y. 

the    presumption     of     death     arising  444;   Miller   v.   Clark,    5     Lans.    (N. 

fr-nm    an    absence    of    seven  years    be  Y. )   388;   Patterson  v.  Maryland  Ins. 

rebutted   by    such    evidence.      Smoth-  Co.,  3  H.  &  J.    (Md. )   71. 

ers    V.    Mudd,   ante.       The    fact   that  '  Stephens   v.    Vrooman,    16    N.    Y. 

the   declaration   was  made  by   a  per-  381. 

son    since   deceased    does    not    render  *  Gray    v.    Goodrich,    7    John.     (N. 

it  admissible.    Dewey  v.  Goodenough,  Y.)    96;   Sparge  v.  Brown,  9  B.  &  C. 

56  Barb.   (N.  Y.)    54;  Gray  v.  Good-  938;  Suttcn  v.  Ridgway,  4  B.  &  Ali. 

55. 


Sec.  73.] 


Hearsay  Evidence. 


253 


is  clearly  hearsay,  and,  except  in  the  special  instances  which  will 
be  hereafter  referred  to,  is  not  admissible.  Thus,  upon  an  issue  as 
to  whether  a  person  was  pecuniarily  responsible  at  a  certain  time, 
it  is,  as  held  by  most  of  our  courts,  not  competent  for  a  witness  to 
state  what  his  ''understanding"  in  reference  to  the  matter,  as  ac- 
quired from  other  persons,  is ;  but  he  must  also  speak  from  his 
personal  knowledge.^  A  witness  who  has  made  an  investigation  as 
'to  the  financial  condition  of  another  may  testify  as  to  it  but  he 
cannot  testify  as  to  his  general  financial  reputation.^  But  it  is  no 
departure  from  the  rules  of  evidence  to  prove  the  notoriety  in  the 
neighborhood  of  a  fact  already  proved  to  exist,  to  lay  the  founda- 
tion for. an  inference  that  a  resident  was  cognizant  of  the  fact.^ 
However,  it  has  been  held  that  evidence  is  admissible  of  the  gen- 
eral reputation  of  a  deceased  person  as  a  careful  and  prudent  man 


1  Caswell  V.  Howard,  16  Pick. 
(Mass.)  567;  Green  v.  Caulk,  16  Md. 
556.  While  the  fact  of  insolvency 
cannot  be  proved — as  a  rule — by 
liearsav  evidence,  Molyneaux  v.  Col- 
lier, 13  Ga.  406;  Walker  v.  Forbes, 
25  Ala.  139;  Vaughan  v.  Warnell,  28 
Tex.  119,  in  most  of  the  States,  yet 
in  some  of  them  it  is  held  that  a  per- 
son's pecuniary  responsibility  may 
be  sho\Aai  by  his  general  reputation 
in  that  respect  at  the  time  in  ques- 
tion. Bank  of  Middleburg  v.  Rutland, 
33  Vt.  414;  and  in  Michigan  it  has 
been  held  that,  in  the  case  of  an  as- 
signment for  the  benefit  of  creditors, 
evidence  of  general  reputation  is  ad- 
missible to  show  the  pecuniary  stand- 
ing and  condition  of  the  assignee, 
and  even  his  actual  insolvency,  to 
esfablish  fraud.  Angel  v.  Rosen- 
bury,  12  Mich.  241.  See  also  Mim- 
inger  v.  Knox,  8  Minn.  140,  where  it 
was  held  that  a  person's  insolvency 
might  be  shown  by  hearsay.  In  Ver- 
mont the  rule  is  that,  when  the  ques- 
tion at  issue  is  in  reference  to  the 
pecuniary  responsibility  of  a  person, 
a  witness  may  be  allowed  to  express 
his  opinion  as  to  such  person's  solv- 
ency as  derived  from  a  personal  ac- 
quaintance ti'ith  him,  and  from  his 
reputation  in  this  respect  in  the 
community  tchere  he  resides.  Hand 
V.  Brown,  18  Vt.  87. 

'Wolf son  V.  Allen  Brothers'  Co., 
120  Iowa,  455,  94  N.  W.  910;   Cole- 


man V.  Lewis,  183  Mass.  485,  67  N. 
E.  R.  603. 

=  Tenn.  Coal,  etc.  R.  R.  Co.  v.  Linn, 
123  Ala.  112,  26  So.  245,  82  Am.  St. 
Rep.  108.  Thus,  where  the  defend- 
ants represented  to  the  plaintiff  that 
an  insolvent  person  was  good  for  his 
contract,  hearsay  was  held  admissi- 
ble to  prove  the  notoriety  of  the  in- 
solvency in  the  neighborhood,  and 
established  a  presumption  that  the 
defendants  knew  it  when  they  repre- 
sented him  otherwise.  Ward  v.  Hern- 
don,  5  Port.  (Ala.)  382.  So  where 
it  is  sought  to  bring  home  to  a  per- 
son knowledge  of  a  certain  fact,  evi- 
dence of  the  general  belief  among  his 
neighbors,  of  the  existence  of  the 
fact,  is  admissible.  Benoist  v.  Dar- 
by, 12  Mo.  196.  Thus,  proof  that  the 
burning  of  a  warehouse  was  gener- 
ally known  in  the  town  where  it  was 
situated,  is  admissible  to  bring  home 
a  knowledge  of  the  fact  to  one  who 
had  cotton  destroyed  by  the  fire,  who 
lived  within  twenty  or  twenty-five 
miles  of  the  place,  and  traded  in  it, 
and,  two  months  after  the  fire,  exe- 
cuted his  note  for  an  advance  on  the 
cotton.  Jones  v.  Hatchett,  14  Ala. 
743.  But  see  Oden  v.  Stubblefield.  4 
Ala.  40,  where  it  was  held  that  in 
order  to  show  that  the  husband 
knew  certain  facts  relative  to  his 
wife,  it  was  not  competent  to  show 
that  the  matter  was  spoken  of  in  his 
family  in  the  presence  of  his  wife. 


254 


Evidence,  [Chap.  4 


to  show  that  he  used  due  care  in  the  accident  which  caused  his 
death,  in  the  absence  of  other  evidence  of  the  facts/  In  an  action 
for  assault  and  battery  a  witness  may  testify  to  His  knowledge  of 
the  plaintiff's  reputation  in  the  community  where  the  plaintiff  at 
the  time  resided.^ 

Such  evidence  is  not  admissible  to  establish  the  value  of  property,, 
although  such  understanding  was  derived  from  persons  who  buy 
and  sell  that  species  of  property/  or  who  are  regarded  as  experts  in. 
such  matters.     Thus,  the  report  of  a  state  fair  committee  on  ag- 
riculture upon  the  value  of  a  patented  drill  was  held  mere  hearsay 
and  not  admissible.^    But  where  the  speed  of  a  horse  is  in  question 
the  official  annual  reports  of  a  trotting  association  have  been  held 
admissible  to  prove  the  record  of  the  horse.^     An  appraisal  of 
property  sold  under  an  execution,  made  by  appraisers  appointed 
for  that  purpose,  is  not  admissible  to  establish  the  actual  value  of 
the  property  in  question  in  an  action  by  a  person  claiming  to  be  its 
owner;®  nor  are  letters  written  by  the  plaintiff  to  third  persons, 
tending  to  show  a  conversion  of  such  property  by  the  defendant, 
admissible  to  make  out  a  conversion  f  nor  is  it  competent  for  one 
member  of  a  family  to  testify  as  to  what  another  member  of  the 
family,  who  is  dead,  told  him  a  certain  family  portrait  cost  ;^^  nor 
for  one  member  of  a  firm  to  testify  as  to  what  another  member  of 
the  firm  told  him  the  latter  paid  for  certain  goods  purchased  by 
him  for  the  firm.^^    General  reputation  is  not  competent  evidence 
to  prove  a  partnership,^^  but  the  transactions  of  parties  bearing 
upon  the  point  may  be  received  if  not  objectionable  on  general 
principles ;"  nor  is  such  evidence  admissible  to  establish  the  fact 
of  agency,  and  the  evidence  must  go  to  acts  done  by  the  alleged 
agent  and  ratified  by  the  principal  •,^'  nor  to  prove  who  are  officers 

*  Illinois   Cent.   E.  Co.   v.   Prickett,  'Galling  v.  Xewell,  9  Ind.  572. 

210  111.  140,  71  N.  E.  435.  « Pittsburg,    etc.    Ry.    Co.    v.    Shep- 

^  Hallev  V    Tichenor,  120  Iowa  164,  paid,  56  Ohio  State,  68,  46  N.  E.  61 ; 

94  N.  W.  472.  60  Am.   St.  Rep.   732. 

« Green  v.  Canlk,  16  Me.  556;  Wil-  »  Flannigan    v.   Althouse,   56   Iowa, 

lianison  v.  Dillon.   1  H.  &  G.    (Md.)  513. 

444.      In   Heath   v.    West,    26    N.   H.  '"  David  v.  David,  66  Ala.   139. 
191,    it    was    held    that    neither    the  "  Houston,  &c.,  R.  R.  Co.  v.  Burke,, 
qualities  or  value  of  a  horse  can  be  55  Tex.   323. 
proved  by  reputation.     See  also  Pres-  'MYillianison  v.  Dillon,   ante. 
cott   V.   Hayes,   43   id.   593,   where   it  "Marks  &  Stix  v.  Hardy's  Admin- 
was  held  that  proof  of  rumors  which,  istrator    (Ky.),  78  S.   W.  864. 
if     true,    would    affect   the     value    of  "Hicks  v.  Crane,  17  Vt.  499;   Her- 
certain   property,    is    not   admissible  soni  v.  Henderson,  23  N.  H.  498. 
upon  the  question  of  value.  "  Perkins    v.     Stebbins,     29     Barb. 


Sec.  73.]  Hearsay  Evidence.  255 

of  a  private  corporation.^®  The  character  of  a  house  cannot  be 
proven  by  evidence  of  its  reputation/^  but  where  the  character  of 
a  person  is  in  issue  it  may  be  shown  only  by  evidence  of  general 
reputation.  So  in  an  action  for  an  indecent  assault,  the  defend- 
ant may  not  put  in  evidence  of  specific  immoral  acts  by  the  plain- 
tiff.^^ Where  one  accused  in  a  criminal  case  goes  upon  the  stand 
his  general  reputation  for  truth  may  be  shown  against  him  but  it 
may  not  be  shown  that  he  was  "  a  little  fussy  "  where  he  has  not 
put  his  character  in  evidence.^^ 

In  an  action  for  the  conversion  of  property  against  an  officer 
who  took  it  under  process  as  the  property  of  a  person  in  whose 
possession  it  was  found,  it  is  not  competent  for  the  plaintiff,  in 
order  to  establish  his  title  to  the  property,  to  show  that  such  per- 
son had  stated  to  others  that  he  borrowed  the  property  of  the  plain- 
tiff.'*' Xeither  hearsay  evidence  or  general  reputation  is  admissibe 
to  establish  the  title  to  property,  either  personal^^  or  real.^^  Thus, 
where  a  party  offered  evidence  to  show  that  the  land  in  controversy 
had  been  called  the  land  of  "I.  S.,"  under  whom  he  claimed,  it  was 
held  inadmissible.^^  The  fact  that  projDcrty  was  assessed  to  a  cer- 
tain person,  is  not  admissible  in  an  action  in  such  person's  favor 
to  establish  his  title  thereto  ;^^  nor  are  letters  written  by  third  per- 
sons, not  parties  to  the  suit,  competent  evidence.^^ 

Statements  by  a  party  in  his  own  favor  are  not  admissible  in. 
evidence  unless  they  are  part  of  the  res  gestae.  In  one  case  where 
the  possession  of  money  was  in  issue  and  the  mortgagor  claiming 
to  have  the  money  claimed  it  was  buried  in  a  jar  in  the  cellar,  she 
went  down  cellar  with  her  daughter  at  one  time  and  pointed  out 
the  place  in  the  cellar  where  she  said  the  money  was  buried,  it 
was  held  that  this  statement  was  not  admissible  as  part  of  the  res 
gestae  for  the  reason  that  neither  the  mortgagor  nor  her  daughter 

(N.  Y.)   523;  Blevins  V.  Pope,  7  Ala.  "Allen    v.    Protee,    40    Ala.     358; 

371;   Trowbridge  v.  Wheeler,  1  Allen  Whitsett  v.  Slotee,  23  id.  626;  Corley 

(Mass.),  162.  V.  State,  28  id.  22. 

"Litchfield  Iron  Co.  v.  Bennett,  7  "School   District   v.    Blakeslee,    13 

Cow.    (N.  Y.)   234.  Conn.  227;  McKunion  v.  Bliss,  21  N. 

"Eamsey  v.    Smith,   138   Ala.   333,  Y.   206;    Parker  v.   Pierce,    16    Iowa, 

35  So.  325.  227 ;    Rowland    v.    Crocker,    7   Allen 

^*  Miller  v.   Curtis,    158   Mass.   127,  (Mass.),  153. 

32  N.  E.   1039;   35  Am.  St.  Rep.  469.  "School    District   v.    Blakeslee,    1$ 

^*  State   V.    Foster,    130   N.    C.   666,  Conn.   227;    Urkett  v.   Corgall,  5   W. 

41    S.  E.   284;   89  Am.  St.  Rep.   876.  &  S.    (Penn.)   60. 

See  also  §  57,  ante.  "Adams  v.  Hiscock,  55   Iowa,  632. 

"  King  V.   Frost,  28  Minn.   417.  "  Simpson  v.  Smith,  27  Kan.  565. 


256  EviDEis^cE.  [Chap.  4: 

actually  saw  the  money  or  the  jar  in  which  it  was  contained.^*' 
In  an  action  against  a  sheriff  for  alleged  wrongful  conversion  by 
an  attachment  a  statement  of  the  defendant  in  a  suit  in  which  the 
attachment  took  place  that  he  had  "sold  out"  to  the  plaintiff  in  the 
suit  against  the  sheriff  is  inadmissible,  being  a  self-ser\dng  state- 
ment.^^ A  report  made  in  the  usual  course  of  business  by  a  con- 
ductor of  a  street  car  to  his  company  on  the  day  of  an  accident  of 
the  number  of  passengers  carried  on  that  trip  is  admissible  although 
the  conductor  has  previously  testified  to  the  same  facts  as  stated 
in  his  report.  The  court  considered  the  report  as  not  within  the 
rule  as  to  self-serving  declarations  as  it  was  made  in  the  course  of 
duty  and  before  the  witness  had  any  knowledge  that  the  accident 
had  occurred  and  is  admisible  to  sustain  testimony  on  the  stand 
as  against  the  possible  objection  of  interest  as  being  in  the  service 
of  his  employers.^^ 

Where  the  belief  of  a  party  is  in  issue,  as  in  a  charge  of  fraud 
against  an  official  of  a  bank  depending  on  his  knowledge  of  the 
insolvency  of  the  bank,  the  party  may  be  allowed  to  testify  to  his 
belief.^®  The  knowledge  of  the  prevalence  of  a  certain  disease, 
gained  by  government  officials  by  correspondence  in  the  course  of 
their  official  duty,  is  not  hearsay.^*^  Testimony  will  not  be  excluded 
as  hearsay  even  though  there  is  great  probability  that  much  of  it 
was  founded  on  hearsay  if  given  in  answer  to  a  question  as  to  the 
knowledge  of  a  witness.  If  it  is  hearsay  it  is  encumbent  upon  the 
objector  to  make  that  fact  appear  to  the  court. ^^ 

Words  spoken  while  asleep  come  from  an  unconscious  condi- 
tion, they  have  little  or  no  meaning ;  they  are  as  likely  to  refer  to 
unreal  facts  or  conditions  as  things  real;  they  are  wholly  unre- 
liable and  not  admissible  in  evidence,  so  statements  of  a  plaintiff 
while  asleep  after  being  bitten  by  a  dog  are  not  admissible  to  show 
his  nervous  condition  of  mind.  Such  testimony  is  inadmissible 
as  hearsay. ^^    Where  a  witness  testifies  in  a  foreign  language  which 

'"  Pinney   v.    Jones.    64   Conn.    545,  '"  Grayson  v.  Lynch,  163  U    S    468 

30  A.  762,  42  Am.  St.  Rep.  209.  16  S.  Ct.  1064.     ^ 

"  Lumm    V.   Howells,    27    Utah    80,  "  Sloan  v.  Hunter.  56  S.  C    .385    34 

74  Pac.  432.  S.  E.  658,  76  Am.  St.  Rep.  551. 

='Callihan    v.     Washington    Water  ^' Plummer  v.  Ricker,  71   Vermont 

Power  Co.,  27  Wash.  154,  67  P.  697,  114.  41  A.  1045,  76  Am.  St.  Rep    757' 

91  Am.  St.  Rep.  829.  See,  also.  People  v.  Robinson,  19  Cal. 

"Cassidy    v.    Uhlman,    163    N.    Y.  40. 
380,  57  N.  E.  620,  79  Am.  St.   Rep. 
596. 


Sec.  74.]  Hearsay  Evidence.  257 

is  translated  to  the  court  by  an  interpreter  one  who  heard  the  in- 
terpreter but  did  not  understand  the  foreign  hmguage  cannot  be 
called  to  prove  the  testimony  unless  the  interpreter  was  employed 
by  and  acted  as  the  agent  of  the  foreign  witness.  In  that  case  the 
language  of  the  interpreter  is  to  be  taken  as  the  language  of  the 
man  who  employed  him  and  speaks  through  him  but  not  if  an 
official  interpreter  is  used.^^  A  witness  may  testify  to  a  conversa- 
tion over  the  telephone  with  the  office  of  another  party  to  the  suit 
if  he  can  swear  that  he  recognized  the  voice  of  the  person  with 
whom  he  talked  as  that  of  one  of  the  employees  in  the  office  al- 
though he  does  not  remember  the  name.^"* 

The  consideration  in  a  deed  is  hearsay  as  to  third  parties.^^ 
Medical  works  or  recitals  from  them  are  inadmissible  as  hearsay.''^ 
Eecitals  in  a  private  statute,  or  in  the  petitions  on  which  it  is  based, 
as  to  a  prior  confiscation  of  land  by  the  State,  are  not  evidence  of 
the  confiscation.^'^  A  bill  of  exceptions  setting  forth  the  testimony 
of  a  witness  is  not  evidence  of  w^hat  the  testimony  was  to  be  used 
in  another  proceeding. ^^  Parol  evidence  is  admissible  to  show  who 
occupied  a  certain  public  office  at  a  certain  time  without  producing 
the  commission  of  the  officer  as  the  evidence  was  of  a  fact  and  not 
of  a  conclusion.^^ 

Sec.  74.  Exceptions  to  the  Rule. 

To  the  general  rule  relating  to  hearsay  evidence,  there  are,  from 
necessity,  several  exceptions,  which  are  as  w^ell  established  as  the 
rule  itself,  and  a  thorough  knowledge  of  the  application  of  which 
is  of  the  highest  importance  to  the  practitioner.  These  exceptions 
are  mainly  embraced  under  the  following  heads : 

1st.  Relating  to  matters  of  general  or  public  concern. 

2d.  Pedigree. 

3d.  Ancient  possession. 

4th.  Boundaries. 

34,r--  ^^  4"2:  St-  I^ep.  60O.  519,  75  Pac.  104. 

Missouri  Pac.  Ry.  Co.  v.  Heiden-  "  j)     j         Movies    76  Vt    25    5fi   4 

heimer,  82  Tex.  195,  17  S.  W.  608,  27       174.  ^^loyies,  /b  vt.  2d,  06  A. 

'^Z'<?\^^^-^!^^-  "Edwards    v.    Gimbel,    20-'     Penn 

'"Spohr  V.  Chicago,  206  111.  441,  69       30,  51  A.  357 

^-  ^-  ^-  ^^^-  "^^^^^  ''■  Haskins,   109  Iowa,  656, 

^^  80  N.  W.  1063,  77  Am.  St.  Rep.  560. 


258  Evidence.  [Chap.  4r 

5th.  Dying  declarations. 

eth.  Declarations  against  interest  by  persons  deceased. 

7th.  Declarations  or  entries  made  in  the  course  of  office  or  bus- 
iness (res  gestae). 

8th.  Testimony  given  by  a  witness  on  a  former  trial,  since 
deceased. 

9th.  Admissions  by  parties  in  interest. 


CHAPTER  V. 

Hearsay  to  Pkove  Geheeal  ok  Public  Rights.^ 

Section  75.  Admissible  to  prove  public  rights. 

76.  Meaning  of  terms  "  public  "  and  "  general." 

77.  When  independent  proof  is  not  necessary. 

78.  Application  of  the  exception. 

79.  Instances  in  which  such  evidence  has  been  rejected. 

80.  Must  be  ante  litem  niotam. 

Sec.  75.  Admissible  to  prove  Public  Rights. 

Hearsay  evidence  is  admissihle  as  to  questions  relating  to  mat- 
ters of  public  or  general  interest}  The  term  "  interest,"  as  em- 
ployed in  this  rule,  means  pecuniary  interest,  or  some  interest  hy 
which  the  legal  rights  or  liabilities  of  a  class  of  the  community  are 
affected/  and  the  grounds  of  admissibility  are,  that,  as  the  origin 
of  such  rights  is  generally  ancient  and  obscure,  they  are  usually 
incapable  of  direct  proof,  and  because,  as  to  local  matters,  all  per- 
sons living  in  the  neighborhood  and  interested  in-  them  are  likely 
to  be  conversant,  as  common  rights  are  naturally  the  subject  of 
common  and  public  conversation,  in  the  course  of  which  statements 
are  made  which,  uncontradicted,  are  likely  to  be  true,  and  thus 
a  trustworthy  reputation  may  arise  from  the  concurrence  of  many 
unconnected  with  each  other,  and  interested  in  investigating  the 
truth  ;*  and  it  is  this  prevailing  current  of  assertion  that  is  re- 
sorted to  as  evidence,  for  it  is  to  this  that  every  member  of  the 
community  is  supposed  to  be  privy,  and  to  contribute  his  share.^ 

Traditionary  evidence  of  public  rights  is  confined  to  matters 
which' are  incapable  of  proof  by  living  witnesses.^  ,  Testimony  of  a 
witness  that  it  had  been  the  general  reputation  in  the  community 

'For    a    consideration    of    hearsay  to  negative  public  liability;  Queen  v. 
in    private    matters    and    of   the    dis-  Bedfordshire,  4  E.  &  B.  535. 
tinction   between    public    and   private  *  Lord  Campbell  in  R.  v.  Bedford- 
rights,  see  post,  sec.  88.  shire,  4  E.  &  B.  541. 

==  Berkley    Peerage    Case,    4    Camp.  ■>  Wright  v.   Tatham,    7   Ad.   &   El. 

415;    :\lorewood    v.    Woods,    14    East,  366. 

329 ;  Weeks  v.  Sparke,  1  M.  &  S.  686 ;  » City    of    Hartford    v.    Maslen,    7S 

R.  v.  Bedfordshire,  4  E.  &  B.  535.  Conn.  599,  57  A.  740,  746. 

*  The  interest  may  be  negative,  as 

(259) 


260  Evidence.  [Chap.  5 

that  the  land  was  public  ground  is  inadmissible  as  the  only  repu- 
tation which  is  admissible  to  establish  such  facts  is  that  of  a  past 
generation.^  This  species  of  evidence  is  also  admissible  to  prove 
a  matter  of  a  public  nature  coming  in  question  incfdentally  in  a 
private  controversy.^ 

Sec.  76.  Meaning  of  the  Terms  "Public"  and  "General." 

In  speaking  of  matters  of  public  and  general  interest,  the  terms 
public  and  general  are  sometimes  used  as  synonyms,  meaning 
merely  what  concerns  a  multitude  of  persons.^  But,  in  regard  to 
the  admissibility  of  hearsay  testimony,  a  distinction  has  been 
taken  between  them ;  the  term  public  being  strictly  applied  to  that 
which  concerns  every  member  of  the  State;  and  the  term  general  \ 
being  confined  to  a  lesser,  though  still  a  considerable,  portion  of 
the  community.  This  distinction  should  be  carefully  attended  to, 
because  in  matters  strictly  public,  such,  for  example,  as  a  claim 
of  highway  or  a  right  of  ferry,  reputation  from  any  one  appears  to 
be  receivable ;  and  although  declarations  w'ould  be  almost  worth- 
less, unless  made  by  persons  who,  by  living  in  the  neighborhood, 
or  by  frequently  using  the  road  or  ferry,  or  the  like,  are  shown  to 
have  had  some  means  of  knowledge ;  yet  the  want  of  such  proof  of 
their  connection  with  the  subject  in  question  seems  to  affect  the 
value  only,  and  not  the  admissibility,  of  the  evidence.  If  how- 
ever, the  right  in  dispute  be  simply  general ;  that  is,  if  those  only 
who  live  in  a  particular  district,  or  adventure  in  a  particular  en- 
terprise, are  interested  in  it,  hearsay  from  persons,  wdiolly  uncon- 
nected with  the  place  or  business,  would  be,  not  only  of  no  value, 
but  probably  altogether  inadmissible.^ 

*  Dawson  v.  Orange   (Conn.,  1905),  171,  n.    1;    Concl.    183,   n.  2;    Concl. 

61  A.  101.  547,  n.    19.      It    was    held    sufficient, 

'  Thomas  v.  Jenkins,  6  A.  &  E.  525.  plena    prohatio,   wherever,    from    the 

See  also  North  Brookfield  v.  Warren,  nature    of    the    case,    better   evidence 

16  Gray   (Mass.)    171.  was   not  attainable;   uhi  a  communi- 

'  Pim  V.  Curell,  6  M.  &  VV.  234.  ter     accidentihus,     probatio    difpcUis 

'Crease  v.   Barrett,   1   C,  M.  &  R.  est,    fama   plenam   solet   prohationem 

929,  per  Parke,  B.       By  the  Roman  facere;  ut    in    prohatione  filiationis. 

law,    reputation,    or    common    fame.  But   Marcardus     deems    it   not   suffi- 

seems  to  have  been  admissible  in  evi-  cient,  in  cases  of  pedigree  within  the 

dence,   in   all   cases;    but   it   was   not  memory  of  man,  which   he   limits  to 

generally     deemed     sufficient     proof,  fifty-six  years,  unless  aided  by  other 

and,   in   some   cases,    not   even   semi-  evidence — tunc   nempe    non    sufficeret 

plena  probatio,  unless    corroborated;  publica    vox    et    fama,   sed    una    cum 

nisi      aliis     adminiculis      adjuvetur.  ipsa   deberet    tractatus    et   nominatio 

Mascardus,   De   Prob.,   vol.    1,   Concl.  probari,  vel  alia  adminicula  urgentia 


Sec.  76.]        To  Prove  General  or  Public  Eights. 


261 


Thus  it  appears  that  competent  knowledge  in  the  declarant  is, 
in  all  cases,  an  essential  prerequisite  to  the  admission  of  his  testi- 
mony ;  and  although  all  residents  are  presumed  to  have  that  knowl- 
edge, in  some  degree,  where  the  matter  is  of  public  concernment, 
yet,  'in  other  matters,  which  are  not  strictly  public,  though  they 
are  interesting  to  many  persons,  some  particular  evidence  of  such 
knowledge  is  generally  required. 


adhiberi.     Mascard.  De  Prob.  vol.   1, 
Concl.  411,  n.  1,  2,  6,  7. 

Thus,     in     an     action     of    trespass 
quare  clausum  fregit,  where  the   de- 
fendant pleaded  in  bar  a  prescriptive 
right  of  common  in  the  locus  in  quo, 
and  the  plaintiff   replied,   prescribing 
in  right  of   his  messuage  to  use  the 
same   ground    for    tillage    with    corn, 
until  the  harvest  was  ended,  travers- 
ing   the   defendant's    prescription;    it 
appearing  that  many  persons,  besides 
the   defendant,   had   a   right   of   com- 
mon there,  evidence  of  reputation  as 
to  the  plaintiff's  right  was  held  ad- 
missible,   provided     it     were    derived 
from    persons     conversant    with     the 
neighborhood.     Weeks    v.    Sparke,    1 
M.    &    Sel.    679,    688,    689,    per    Le 
Blanc,  J.     The  actual  discussion  of 
the  subject  in  the  neighborhood,  was 
a  fact  also  relied  on.   in  the   Roman 
law,   in   cases    of    proof   by   common 
fame.     "  Quando   testis    vult   prohare 
aUquem    scivisse,    non    videtur    suffi- 
cere,  quod  dicat  ille  scivit  quia  erat 
vicinus;  sed  debet  addere,  in  vicinia 
hoc   erat    cognitum     per    famam,   vel 
alio  niodo:  et  ideo  iste,  qui  erat  vi- 
cinus, potuit  id  scire."    J.  IMenochius, 
De  Pasesump.  torn.  2,  lib.  6,  Prss.  24, 
n    17,   772.      See  also  Mascardus,   de 
Prob.  vol.   1,  p.  389,  390,  Concl.  395, 
n.  1,  2,  19,  9,  where  the  law  is  thus 
laid      down:— "Con/znes       prohantur 
per  testes.     Verum  scias  velim,  testes 
in   hac  materia,  qui  vicini,  et  circum 
ibi  habitant,  esse  magis'idoneos  quam 
alios.     Si  testes  non  sentiat   commo- 
dum   vel    incommodum     immediatum, 
possint    pro    sua    commtinitate    depo- 
nere.     Licet  hujusmodi  testes  sint  de 
universitate,   et   deponant   super   con- 
finibus    suoe     universitatis,    probant, 
dummodum   proeciptium    ipsi   comma- 
dum  non  sentiant,  licet  inferant  com- 
modu7n   in   universum,"       So,   where 


the    question    was    whether    Notting- 
ham  Castle  was  within   the   hundred 
of   Broxtowe,   certain   ancient  orders, 
made  by  the  Justices  at  the  Quarter 
Sessions  for  the  county,  in  which  the 
castle  was  described  as  being  within 
that    hundred,    were    held    admissible 
evidence   of   reputation;    the   justices, 
though  not  proved  to  have  been  resi- 
dents within  the  county  or  hundred, 
being  presumed,  from  tlie  nature  and 
character    of    their     offices    alone,    to 
have  had  sufficient  acquaintance  with 
the   subject  in   dispute,   to  make   the 
statements    in    their   orders    admissi- 
ble.    Duke  of  Newcastle  v.  Broxtowe, 
4   B.   &    Ad.   273.     Again,   where   the 
question    related     to     the    custom    of 
mining  in   a   particular  district,  per- 
sons, under  whose  estates  the  miner- 
als   lay,    with    respect    to   which    the 
custom  was  said  to  exist,   were  held 
to  be  sufflrciently   connected  with   the 
subject    to   make     their    declarations, 
evidence,    as    they    were    more    likely 
than   others    living   at   a   distance   to 
become   adventurers,   and   consequent- 
ly  to   be   subjected   to   the   operation 
of  the  custom.     Crease  v.   Barrett,   1 
C,  M.  &  R.  919,  928-930.    But  where 
the   point  at  issue  was,  whether  the 
city  of  Chester  anciently  formed  part 
of  'the  County  Palatine,  an  old  docu- 
ment,  purporting   to   be   a    decree   of 
certain    law    officers    and    dignitaries 
of    the   crown,    not   having   authority 
as  a  court,  was  held  inadmissible  as 
evidence  of  reputation,  because  those 
personages    had    no    peculiar    knowl- 
edge  of   the   subject,   excepting  what 
they   derived   in    the    course    of    that 
unauthorized    proceeding.      Rogers   v. 
Wood,   2    B.    &    Ad.   245,   256,   recog- 
nized by  the   Court  of  Exchequer   in 
Crease  v.  Barrett,  1  C,  M.  &  R^  928, 
929;  see  also  Evans  v.  Taylor,  7  Ad. 
&  El.  617,  626,  627. 


262  EviDEXCE.  [Chap.  5 

Sec.  77.  When  Independent  Proof  is  not  Necessary. 

If  the  quality  of  the  hearsay  itself  raises  a  natural  inference 
that  it  was  derived  from  persons  acquainted  with  the  subject,  the 
courts  will  not  require  independent  proof  of  that  fact ;  and,  there- 
fore, where  the  question  turned  on  a  manorial  custom,  depositions, 
purporting  to  have  been  uuide  by  copyholders  in  an  ancient  suit 
between  a  former  lord  and  a  person  claiming  admission  to  a  copy- 
hold, were  admitted  in  evidence  without  proof  that  the  persons 
making  them  were  either  copyholders,  or  were  otherwise  ac- 
quainted Avith  the  customs  of  the  manor;  for  the  couits  assumed 
tiiat  such  persons  would  not  have  been  brought  fonvard  as  wit- 
nesses, had  they  been  ignorant  of  the  subject.^ 

Sec.  78.  Application  of  the  Exception. 

It  may  be  expedient  to  enumerate  a  few  of  the  principal  ques- 
,  tions,  which  have  been  deemed  to  involve  matters  of  public  or 
general  interest,  and  to  contrast  these  with  some  others,  which 
tlie  courts  have  considered  to  be  of  too  private  a  nature  to  allow 
of  their  being  illustrated  by  evidence  of  reputation.  Thus,  hearsay 
has  been  admitted  where  the  question  related  to  a  right  of  com- 
mon,^ a  parochiaP  or  other  distinct  mod  us, ^  a  manorial  custom^,  a 
custom  of  mining  in  a  particular  district,^  a  custom  of  a  corpora- 
tion to  exclude  foreigners  from  trading  within  a  town,^  the  limits 

*  Freeman  v.  Phillipps.  4  M.  &  Sel.  surveyor  had  any  authority  to  insti- 

486.      So.    an    ancient    unsigned    cus-  tute    the   inqviry ;     and     stripped   of 

tomary  of  a  manor,  which  purported  this    authority    he   not    only   had    no 

to  be  Vx  asscnmi  omnium   tennntium,  right    to    make   any   kind    of    return, 

and    which   had     been     handed    down  but    the    presumption     that    he     did 

with  the  court  rolls  from  steward  to  make    one   fell    to   the   grourid.      The 

steward,  was  received  as  evidence   to  paper    might    have    been    written    by 

prove    the    course    of    descent    within  any   clerk   idling   in   the   office  where 

the  manor.     Denn  v.   Sprav.   1   T.   R.  it  was  found,  from  his  own  imagina- 

456,  473:    see  also  Chapman  v.  Cow-  tion,   or   compiled,   possibly,   by   some 

Ian,   13  East,   10.     But  where,  in  or-  interested  person  in  furtherance  of  a 

der'  to    prove    the    boundaries    of    a  sinister  object  of  his  own.     Evans  v. 

manor,   an   ancient   survev    was    pro-  Taylor,  7  Ad.  &  El.  017.  626,  62r  ;   1 

duced      from      the     proper     custody,  Taylor  on  Ev§§  418-422 

which  purported  to  have  been  made  MYeeks  v.  Sparke,  1  M.  &  b.  b /  9 

in  the  time  of  Queen  Elizabeth  by  a  ^  Moseley  v.  Davies    11   Price,  162; 

deputy    surveyor    appointed    by    the  White  v.  Lisle,  4  Madd.  Ch.  214,  _224; 

crown,  and  to  have  been  foimded  on  Short  v.  Lee,  2  Jac.  &  \^  .  464.  4<3. 

the   presentments   of    certain   tenants  '  Rudd  v.  Wright,  1  Ph    Ev    240. 

of  the  manor,  whose  names  were  ap-  *  Doe  y.  Sisson,   12  Last,  b2 

pended  to  it,   the   court  rejected   the  "  Crease  y.  Barrett,   1   C,  M.  &   K. 

document.    o>i    the    ground    that    no  919,  928-930.                    1    r-     .,    t    -qt 

proof  had  been  given  that  the  deputy  « Davies  v.  Morgan,   1   C.  &  J.  oS/. 


Sec.  78.]        To  Prove  Gej^eeal  or  Public  Rights.  263 

of  a  town/  the  boundary  between'  counties,  parishes,  hamlets  or 
manors,^  or  between  old  and' nett"  land"  in  a  manor/  a  claim  of  tolls 
on  a  public  road/*'  the  fact  whether,  a^  road  was  public  or  private/^ 
a  prescriptive  liability  to  repair  sea.-walk^"  or  bridges/^  a  claim  of 
highway/"  a  right  of  ferry /^  the  fact  whether  land  on  a  river  was 
a  public  landing-place  or  not/*^  the  jurisdiction  of  a  court  and  the 
fact  whether  it  was  a  court  of  record  or  not/^  the  existence  of  a 
manor/*  a  prescriptive  right  of  toll  on  all  malt  brought  by  the 
west  country  barges  to  London/^  a  right,  by  immemorial  custom, 
claimed  by  the  deputy  day  meters  of  London,  to  measure,  shovel, 
-unload  and  deliver  all  oysters  brought  by  boat  for  sale  wdthin  the 
limits  of  the  port  of  London,^''  a  claim  by  the  lord  of  a  manor  to  all 
■coals  lying  under  a  certain  district  of  the  manor/^  a  custom  of 
electing  churchwardens  by  a  select  committee,^^  and  a  prescriptive 
right  to  free  warren  as  appurtenant  to  an  entire  manor.^^  On  a 
question  whether  a  certain  road  was  a  highway,  a  copper-plate 
map  was  produced,  in  which  it  was  so  described ;  it  purported  to 
iave  been  taken  by  the  direction  of  the  churchwardens,  and  proof 
was  offered  that  it  was  generally  received  in  the  parish  as  an 
authentic  map ;  but  Lord  Kexyox  rejected  the  evidence.^*  So  the 
production  of  an  old  printed  map  of  a  county  from  the  custody  of 
a  county  magistrate,  who  had  it  some  years  in  his  possession,  does 
not  make  it  admissible  to  prove  the  bounds  of  the  county.^°  It  would 
seem,  hoAvever,  that  if  such  a  map  had  been  supported  by  proof 

'  Ireland   v.   Powell,   cited  Pea.   Ev.  "  Pirn  v.  Curell,  6  IL  &  W.  234. 

16,  per  Chambre,  J.,  and  recognized  '"  Drinkwater  v.   Porter,  7   C.  &  P. 

by  Williams,  J.,  in  R.  v.  Bliss,  7  Ad.  181,  per  Coleridge,  J. 

&  El.  555.  "  Goodtitle   v.   Dew,   Pea.   Add.    R. 

'Nicholis  V.  Parker,   14  East,  331,  204. 

ft.;  Brisco  v.  Lomax,  8  A.  &  E.  198;  ^»  Steel    v.    Prickett,    2    Stark.    466, 

3  N.  &  P.  388,  S.  C. :   Evans  v.  Rees,  per  Abbott,  C.  J. ;  Curzon  v.  Lomax, 

10  Ad.   &  El'.   151 ;    Plaxton   v.   Dare,  5  Esp.  60,  per  Lord  Ellexbobough. 

10  B.  &  C.  17 ;  Thomas  v.  Jenkins,  6  '°  City  of  London  v.  Clerke,  Cartli. 

Ad.  &  El.  5?5.  181. 

•Barnes  v.  Mawson,  1  :\L  &  S.  81.  =»  Laybourn    v.    Crisp.    4   M.    &    W. 

1"  Brett   V.   Beales,    M.     &   M.    416,  320. 

418,  per  Lord  Tenterden.  "  Barnes  v.  Mawson,  1  M.  &  S.  77, 

"R.  V.  Bliss,  7  Ad.  &  El.  555,  per  81.     In  that  case  there  was  evidence 

Williams    J.  of  firi  uniform  exercise  of  the  right. 

"  R.   V.   Leigh,    10   Ad.    &   El.    398,  •■  Berry  v.  Banner,  Pea.  156. 

409    411  "Earl   of   Carnarvon    v.    Villebois, 

"R.  V.   Sutton,   8   A.   &   E.   516;    3  13  M.  &  W.  313. 

N.  &  P.  569,  S.  C.  '*  Pollard  v.   Scott,  Peake,   18. 

"  Crease  v.  Barrett,  1  C,  M.  &  R.  "  Hammond  v.  Bradstreet,  10  Exch. 

529,  per  Parke,  B.;  Reed  v.  -Jackson,  390. 
1  East,  355. 


264  Evidence.  [Chap.  5 

of  its  comjDilation  by  persons  having  particular  means  of  knowl- 
edge of  the  bounds,  or  had  been  in  some  way  sanctioned  publicly  as 
authentic,  it  might  have  been  admissible  as  reputation;  otherwise 
there  is  no  reason  for  attaching  more  value  to  an  engraved  map 
than  to  a  printed  book  as  evidence  of  its  contents;  nor  does  the 
current  use  of  it  by  those  who  reside  in  the  district  delineated 
in  it  imply  an  assent  to  all  its  details.  An  old  map  commonly 
used  at  a  manor  court  to  define  the  limits  of  copyholds,  is  not  evi- 
dence of  a  highway,  though  ways  may  be  indicated  upon  it;  es- 
pecially if  it  does  not  purport  to  describe  them  as  public  ways.^® 

The  proceedings  of  a  public  meeting  called  for  the  purpose  of 
considering  about  repairing  a  w^ay,  at  which  several  present  signed 
a  paper  stating  that  it  was  not  a  public  way,  is  evidence,  though 
slight,  against  the  right. ^^  Even  where  general  reputation  is  evi- 
dence, yet  the  tradition  of  a  particular  fact  is  not ;  as  that  a  house 
once  stood  in  a  particular  spot."^  Xor  is  reputation  admissible  evi- 
dence of  a  farm  modus}^  Where  a  question  of  a  public  way  was  in 
issue,  the  declarations  of  a  deceased  occupier  of  land  made  whilst 
planting  a  tree,  stating  that  he  planted  it  to  show  the  boundary  of 
the  road,  are  not  evidence  of  the  public  right,  for  it  is  not  a  state- 
ment of  general  reputation,  but  of  a  particular  f  act.^°  The  declara- 
tions of  a  deceased  lord  of  the  manor  as  to  the  extent  of  the  w^aste 
are  not  evidence  in  extension  of  it.^^  Where  the  question  Avas,  Avheth- 
er  a  place  was  "within  the  limits  of  a  hundred,  ancient  entries  of 
orders  of  justices  in  sessions,  stating  the  place  to  be  within  such 
limits,  were  held  to  be  evidence  of  reputation,  though  the  justices 
were  not  proved  to  have  been  resident  within  the  hundred  or 
county. ^^  So  the  question  being  whether  certain  land  is  in  the 
parish  of  A.  or  B.,  ancient  leases,  in  which  they  are  described  as 
lying  in  parish  B.,  are  evidence  that  the  land  is  in  that  parish.^^ 
In  assumpsit  for  tolls  by  a  lessee  of  the  corporation  of  Cambridge^ 
an  old  deed  of  composition  between  it  and  the  university,  recog- 
nizing the  right,  was  admitted  in  behalf  of  the  plaintiff,  though  not 
proved  to  have  been  acted  ujDon.^^    But  not  of  a  mere  award,  not 

^opipe  V.  Fulcher,  1  E.  &  E.  111.  '^  Crease  v.  Barrett,  1  C,  M.  &  R. 

"  Barraclough  v.  Johnson,  8  Ad.  &  910. 
El.  99.  ^*  Duke   of   Newcastle  v.   Broxtowe, 

'^  Ireland  v.  Powell.  Peake  Ev.    15.  4  B.  &  Ad.  273. 

'"Pritchett  v.   Honevborne,   1   Y.  &  "  Plaxton  v.  Dare.  10  B.  &  C.   17. 

J.   135.  '  "Brett  v.  Beales,  M.  &  M.  416, 

'°R.  V.  Bliss,  7.  Ad.  &  El.  550. 


Sec.  78.]        To  Prove  General  or  Public  Rights.  265 

proved  to  have  been  acquiesced  in,  nor  is  an  award  iiiter  alws  evi- 
dence, as  repntaiion,  of  the  boundary  of  a  parish  and  count.*"  The 
finding  of  a  jury,  under  a  commission  duly  issued  out  of  the 
duchy  court  of  Lancaster,  on  the  petition  of  tlie  parties  to  ascer- 
tain the  bounds  of  adjoining  manors,  was  held  evidence  of  such 
bounds.^''  But  an  interlocutory  order  of  the  same  court,  contain- 
ing onlv  a  provisional  arrangement  between  the  parties,  is  not  evi- 
dence of  reputation.^^  Generally,  a  verdict,  and  judgment  thereon, 
in  a  matter  in  which  reputation  is  admissible  evidence,  is  also  ad- 
missible; so  of  a  decree  or  inquest  of  office  lawfully  authorized. 
Eeputation  alone  is  said  to  be  evidence  of  the  existence  of  a 
manor  ;=^^  but  it  seems  tliat  some  foundation  should  be  laid  by 
proof  of  acts  done,  as  holding  courts,  etc.,  and  tiie  production  of 
a  deputation  to  kill  game  is  not  of  itself  sufficient  proof  even  of  a 
colorable  title  to  a  real  manor,  for  the  lord  of  a  mere  reputed  manor 
may  grant  one.^^ 

The  rule  with  regard  to  the  practice  from  whom  the  declarations 
proceed  has  been  thus  laid  down :  In  cases  of  rights  or  customs 
which  are  not,  strictly  speaking,  public,  but  are  of  a  general  nature 
and  concern  a  multitude  of  persons,  it  seems  that  hearsay  evidence 
is  not  admissible,  unless  it  is  derived  from  persons  conversant  with 
the  neighborhood.  On  the  otlier  hand,  actual  inhabitancy  in  the 
place,  the  boundaries  of  which  are  in  dispute,  is  unnecessary.  But 
where  the  right  is  strictly  public  (a  claim  of  highway,  for  in- 
stance), in  which  all  the  public  are  interested,  it  is  difficult  to  say 
tliat  there  ought  to  be  any  such  limitation.  In  a  matter  in  which 
all  are  concerned,  reputation  from  any  one  appears  to  be  receiv- 
able, but  almost  worthless  unless  it  came  from  persofis  who  are 
shown  to  have  some  means  of  knowledge,  as  by  living  in  the  neigh- 
borhood, or  frequently  using  the  road  in  dispute.*^ 

"Evans  v.  Rees.  10  Ad.  &  El.  151;  Treasurer  and  Chancellor  of  the  Ex- 
Wiseman   V.   Mackenzie,    5     E.   &   B.  chequer,   etc..  who   had   no   authority 
44y  as  a  court,  was  held  to  be  inadmissi- 
«°  Brisco  V.  Lomax,  8  Ad.  &  El.  198.  ble     evidence     as     reputation     on     a 
"  Pim  V.  Curell,  0  M.  &  W.  234.  question  whether  the  city  of  Chester, 
'*  Steel  V.  Prickett,  2  Stark.  463.  before   it  was   made   a   county   itself, 
"'Rushworth    v.    Craven,    McCl.  &  formed  a  part  of  the  county  palatin- 
Y.  417.  ate,    because    those    personages     had 
*"  Per  Parke,  B.,  in  Crease  v.  Bar-  from    their    situations     no    peculiar 
rett,  1  C,  M.  &' R.  019;  Doe  rf.  Moles-  knowledge    of    the    facts.      Rogers    v. 
worth  V.  Sleeman.  9  Q.  B.  301.  Wood.    2    B.    &    Ad.     245.      So    the 
Thus,  a  document  purporting  to  be  answers  of  the  tenants  of  a  manor  to 
a  decree  of  certain  persons,  the  Lord  an   old  commission   of   survey  issued 


266  EviDEXCE.  [Chap,  5 

Ancient  answers  of  the  customary  tenants  of  a  manor,  stating 
the  rights  of  the  lord  of  the  manor  to  all  mines  within  it,  are  evi- 
dence even  against  the  freeholders,  for  this  claim  affects  all  the 
tenants."  Declarations  of  old  persons  concerning  the  boundaries 
■of  parishes  and  manors  have  been  admitted  in  evidence,  though 
they  were  parishioners,  and  claimed  right  of  common  on  the  wastes 
which  their  declarations  had  a  tendency  to  enlarge.''"  To  prove  the 
•dedication  of  land  to  public  use,  this  species  of  evidence  is  pecu- 
liarly applicable,  and  the  declarations  of  the  owner,  and  the  use 
of  the  lands  for  public  purposes  for  a  long  period  of  time,  can 
often  be  shown  in  no  other  way.''^  In  order  to  admit  evidence  of 
reputation,  it  is  not  necessary  that  the  fact  of  user  should  be 
shown,^*  but  such  evidence  without  user  is  entitled  to  but  little 
weight,  and  has  been  held  not  to  be  admissible  at  all.^^  The  dec- 
larations of  persons  still  alive,  are  not  admissible  in  proof  of  repu- 
tation."^ 

Sec.  79.  Instances  in  which  such  Evidence  has  been  rejected. 

On  the  other  hand,  evidence  of  reputation  has  been  rejected 
where  the  question  was,  what  usage  had  obtained  in  electing  a 
schoolmaster  to  a  grammar  school,^  whether  the  sheriff  of  the 
county  of  Chester  or  the  corporation  of  the  city  of  Chester  were 
bound  to  execute  criminals,^  whether  the  lord  of  a  manor  had  a 
prescriptive  right  to  all  wreck  within  his  manorial  boundaries,^ 
whether  the  plaintiff  was  exclusive  owner  of  the  soil,  or  had  a 
Tight  of  common  only,"  whether  the  land  in  dispute  had  been  pur- 

by  the  lord,  finding  the  bounds  of  the  Y.),   407;    Godfrey  v.   Alton,    12    111. 

manor  in  his  right  to  icreck,  are  evi-  29. 

dence  of  the  former,  but  not  of  the  "  Crease  v.   Barrett;,  ante. 

latter,  they  having  no  peculiar  means  "  Weeks  v.  Sparks,  1  M.  &  S.  686 ; 

of  knowledge,  and  the  lord's  title  to  Rushworth   v.    Craven,    McCl.   .&  Y. 

such  a  franchise  not  being  a  matter  417. 

of  public  concern.       Talbot  v.  Lewis,  **  Woolway   v.    Rowe,    1    Ad.   &   El. 

1  C,  M.  &  R.  495.     Such  a  claim  of  117.  ^ 

wreck   is   one   affecting  only   the   in-  *  Withnell  v.  Gartham,  1  Esp.  324, 

terest  of  the  crown,  and  not  the  ten-  325,  per  Lord  Kenyon. 

ants;  and  the  case  differs  in  that  re-  "  R.  v.  Antrobus,  2  Ad.  &  El.  793- 

spect   from   a    right   of  free   warren.  795. 

Earl  of  Carnarvon  v.  Villebois,  13  M.  '  Talbot  v.    Lewis,    1    C,    U.   &   R. 

&  W.  313.  495. 

"Crease  v.  Barrett,  supra.  'Richards  v.   Bassett,    10   B.   &   C. 

"Nicholls  V.  Parker,  14  East,  531.  663,  senible,  per  Littledale.  J.,  sed 

*' Hunter  v,  Sandy  Hill,  6  Hill    (N.  qu. 

e  Doe  V,  Thomas,  14  East,  323, 


See.  79.]        To  Prove  General  or  Public  Eights.  267 

-chased  by  a  former  occupier,  or  was  part  of  an  entailed  estate,  of 
which  he  had  been  tenant  for  life,^  what  patron  formerly  had  the 
Tight  of  presentation  to  a  living,*'  whether  a  farm  modus  existed, 
and  what  was  its  nature,^  whether  a  party  had  a  private  right  of 
way  over  a  particular  field,^  whether  the  tenants  of  a  particular 
•copyhold  estate  had  the  right  of  cutting  and  selling  wood,^  and 
what  were  the  boundaries  between  two  private  estates.^"  Wliere, 
however,  it  was  shown  by  direct  testimony,  the  admission  of  which 
was  unopposed,  that  the  boundaries  of  the  farm  in  question  were 
identical  with  those  of  a  hamlet,  evidence  of  reputation  as  to  the 
hamlet  boundaries  was  let  in  for  the  purpose  of  proving  those 
of  the  farm ;  for  though  it  was  objected  tliat  evidence  should  not 
be  thus  indirectly  admitted  in  a  dispute  between  private  individ- 
uals, the  court  overruled  the  objection,  Mr.  Justice  Coleridge 
observing  that  "he  never  heard  that  a  fact  was  not  to  be  proved  in 
the  same  manner  when  subsidiary  as  when  it  was  the  very  matter 
in  issue.^^ 

Reputation  is  admissible  as  well  against  as  in  favor  of  a  public 
Tight,  and  it  makes  no  difference  whether  the  declarations  ex- 
pressly negative  the  right,  or  set  up  an  inconsistent  claim,  or  sim- 
ply omit  all  mention  of  the  right,  at  a  time  and  upon  an  occasion 
when  notice  of  it  might  reasonably  be  expected. ^^  Reputation, 
tradition,  or  hearsay,  as  it  may  properly  be  called,  is  from  neces- 
sity admissible  to  prove  historical  facts  of  former  ages,  about 
which  no  contemporaneous  living  person  can  testify.  This  species 
of  evidence  is  disarmed  of  much  of  its  danger  from  the  permanent 
effects  which  are  visible  to  confirm  or  contradict  it,  the  number  of 
:60urces  whence  it  may  spring,  the  number  of  persons  interested  in 

•  Per  Lord  Kenyon,  in  R.  v.  Eris-  *  Blackett    v.    Lowes,    2   M.    &    Sel. 

well,  3  T.  R.  723,  questioning  Bishop  494,  500,  per  Lord  Ellenborough. 

of   Meath   v.   Lord    Belfield,    1    Wils.  "Clothier   v.     Chapman,     14    East, 

215.  331,  n.     By  the  Roman  law,  evidence 

'  Wells  V.  Jesus  College,  7  C.  &  P.  of    reputation     seems     to    have    been 

284,    per    Alderson,    B.  ;     White    v.  deemed  admissible,  even  in  matters  of 

Lisle,    4    Madd.    Ch.    214.    224,    225;  private   boundary.      See   Mascard.   de 

Wright  V.  Rudd,  cited  1  Ph.  Ev.  241,  Prob.  vol.  1,  p.  391,  Concl.  396. 

per  Lord  Lyndhurst.     See,  however,  "  Thomas   v.  Jenkins,  6   Ad.   &   El. 

Webb  V.  Petts,  Noy,  44 ;   Donnison  v.  525,  529.     See  also  Briseo  v.  Lomax, 

Elsley,    3    Eag.    & 'Y.    1396,    n.;    and  8  Ad.  &  El.   198,  213. 

cases  cited  1  Ph.  Ev.  241,  n.  2.  '=  Coleridge,   J.,   in    Drinkwater  v. 

^  Semble,      per     Dampier,     J.,      in  Porter,  7   C.   &  P.    181;    Marquis  of 

W^eeks  v.   Sparke,   1   M.  &  Sel.  691;  Anglesey  v.   Hatherton,   10  M.  &  W. 

and  per  Lord    Kenyon,    in  Reed  v.  218. 

Jackson,  1  East,  357.  -     - 


268  Evidence.  [Chap.  5- 

preserving  the  recollection  of  the  matters  in  question,  and  the  con- 
sequent facilities  for  detecting  false  testimony.  Eights  of  public 
or  general  interest,  which  are  supposed  to  have  been  exercised  in. 
times  past,  partake  in  some  degi-ee  of  the  nature  of  historical  facts^ 
and  especially  in  this,  that  it  is  barely  possible  to  obtain  original 
proof  of  them.  The  law,  consequently,  allows  them  to  be  proved 
by  general  reputation,  that  is,  by  the  declarations  of  deceased  per- 
sons who  may  be  presumed  to  have  had  competent  knowledge  on  the 
subject,"  and  by  old  documents  of  various  kinds,  which,  under 
ordinary  circumstances,  would  be  rejected  for  want  of  originality^ 
etc. 

Sec.  80.  Must  be  ante  Litem  Motam. 

But  in  order  to  guard  against  fraud,  it  is  an  established  quali- 
fication to  the  exception  to  the  rule,  that  such  declarations,  in 
order  to  be  admissible,  must  have  been  made  before  any  contro- 
versy arose  relating  to  the  matter  about  which  they  were  made, 
or,  in  other  words,  unless  they  were  made  ante  litem  motam.  This 
qualification  is  of  the  highest  importance,  as,  says  Mr.  Taylor/ 
"the  ground  on  which  the  declarations  of  deceased  persons  are  ad- 
mitted at  all  is,  that  they  are  the  natural  effusion  of  a  party  who  is 
presumed  to  know^  the  truth  and  to  speak  upon  an  occasion  when, 
his  mind  stands  in  an  even  position,  without  any  temptation  to 
exceed  or  fall  short  of  the  truth;''-  and  no  person  is  presumed 
to  be  thus  indifferent  in  reference  to  matters  in  actual  contro- 
versy, as,  w^hen  a  controversy  has  once  commenced,  people  gen- 
erally take  sides,  and  what  is  then  said  by  them,  is  said  under  the 
bias  of  their  peculiar  views  or  prejudice.  Consequently  all  ex 
parte  statements,  whether  under  oath  or  not,  are  rejected  if  they 
were  made  subsequent  to  the  date  of  the  controversy.^ 

By  the  Eoman  law,  the  term  lis  mota  was  applied  strictly  to 
the  commencement  of  the  action,  and  had  no  reference  to  any 
antecedent  period.  But  with  us  the  term  is  given  a  broader  sig- 
nification, and  is  understood  as  being  the  commencement  of  the 
controversy ,  and  not  necessarily  the  commencement  of  the  suit.* 

"Crease  v.  Barrett,   1   C,  M.  &  R.  ^Berkley   Peerage,     4     Camp.   401; 

919.  Richards  v.  Bassett,  10  B.  &  C.  657; 

'Taylor  on  Ev.  §  628    (7th  ed.).  Monkton  v.  Att'y-Gen.,  2  Russ.  &  My. 

'Loid      Eldon      in    Whitelocke    v.  160. 

Baker,  13  Ves.  514.  "Berkley    Peerage,    4   Camp,   417; 


Sec.  80.]        To  Peove  Ge;ner.^.l  ok  Pub;.ic  Rights. 


269 


But  it  seems  that  whatever  may  be  the  precise  limits  of  the  rule 
of  exclusion,  declarations  will  not  he  rejected  because  they  were 
made  for  the  express  purpose  of  preventing  a  controversy,^  nor, 
^if  no  dispute  has  arisen,    although  made  in  direct  support  of  the 
\itle  of  the  declarant f  and  the  fact  that  the  declarant  stood,  or 
believed  that  he  stood,  in  pari  jure  with  the  party  relying  on  the 
declaration,  will  afford  no  ground  for  the  rejection  of  the  evi- 
dence.''   In  order  to  exclude  this  class  of  evidence  upon  the  ground 
•that  a  controversy  had  arisen  before  the  declarations  were  made, 
it  must  appear  that  the  dispute  related  to  the  particular  subject 
in  issue.  Bayley,  J.,^  announced  the  rule  as  it  is  now  generally 
held  as  follows :     ''The  distinction  has  been  correctly  taken  that 
where  the  lis  mota  was  on  tJie  very  point,  the  declarations  of  per- 
sons would  not  be  evidence,  because  you  cannot  be  sure  that,  in  ad- 
mitting the  depositions  of  witnesses  selected  and  brought  forward 
on  a  particular  side  of  the  question,  who  embark  to  a  certain  degree 
with  the  feelings  and  prejudices  belonging  to  that  particular  side, 
you  are  drawing  evidence  from  perfectly  unpolluted  sources.    But 
where  the  point  in  controversy  is  foreign  to  that  which  was  before 
controverted,  there  never  has  been  a  lis  mota,  and  consequently  the 
objection  does  not  apply."    But  while  in  one  case^  it  was  insisted 
by  Mansfield,  J.,  that  it  made  no  difference,  so  far  as  the  ques- 
tion of  admissibility  was  concerned,  whether  the  declarant  knew 
of  the  existence  of  the  controversy  or  not,  yet  in  the  same  case 
Baron  Graham  took  a  contrary  ground,  and  insisted  that  such  dec- 
larations are  admissible  where  the  declarant  could  not  have  known 
that  a  suit  ivas  commenced  or  contemplated,  and  this  now  seems 
to  be  the  generally  accepted  rule.^*^    The  entire  rule  as  to  lis  mota 
applies  with  equal  force  in  reference  to  the  declarations  of  person 
offered  in  proof  of  pedigree. 

Monkton  V.  Att'y-Gen..  2  Russ.  &  My.  Davies   v.    Morgan,    1    C.    &  J.    593; 

161;   Davies  v.  Lowndes,   7    Scott  N.  Harwood    v.     Sims,     Wighter,      112; 

R.  214;  Slaucy  v.  Wade,  1  My.  &  Cr.  Deacle  v.  Hancock,   13  Price,  296. 

338.  'Freeman   v.    Phillips,    4   M.    &    S. 

"Berkley  Peerage,  ante.  497. 

« Doe  V.  Davies,  16  L.  J.,  N.  S.  222,  '  Berkley  Peerage,  4  Camp.  417. 

Q.  B.  "  Brougham,    J.,    in    Monkton    v. 

'Doe    V.    Tarver,    Ry.    &  M.    141;  Att'y-Gen.,  2  Russ.  &  My.  147;  Reil- 

Moseley    v.    Davies,    11     Price,    162;  ley  v.  Fitzgerald,  6  Ir.  Eq.  349. 
Nicholis  V.  Parker,   14  East,  331,  n.; 


CHAPTEE  VI. 
Heaesay  to  Peove  Pedigeee  axd  Relationship. 

Section  81.  Pedigree,  how  may  be  proved. 

82.  Evidence    should    come    from    member    of    family    or    undoubted 

source. 

83.  What  is  pedigree. 

84.  Old  documents,  inscriptions,  etc.,  admissible  to  establish. 

85.  Entries  in  family  bibles  and  other  family  records. 

86.  Declarations  of  deceased  persons. 

Sec.  8i.  Pedigree,  How  may  be  Proved. 

A  second  exception  to  the  general  rule  rejecting  hearsay  evi- 
dence is  made  in  respect  to  proof  of  pedigree/  and  this  exception 
is  recogTiized  upon  the  ground  of  necessity,  and  is  founded  upon 
the  obvious  difficulty  of  tracing  descent  and  relationship  of  de- 
ceased members  of  families  by  any  other  evidence.  And  it  is  upon 
this  ground  that  the  declarations  of  deceased  parents  are  received 
relative  to  the  legitimacy  of  children/  and  general  reputation,  in 
this  respect,  in  the  neighborhood,  has  been  held  admissible ;  but 
the  value  of  such  evidence  will  depend  upon  the  circumstances  of 
each  case,^  made  of  course  "aw^e  litem  motam/'*  The  general  rep- 
utation of  a  family,  proved  by  a  surviving  member  of  it ;  entries 
contained  in  books,  such  as  family  bibles,  if  produced  from  the 
proper  custody,  even  although  there  be  no  evidence  of  the  hand- 
writing or  authorship  of  such  entries  f  correspondence  between 
relatives;  recitals  in  deeds;  descriptions  in  wills;  inscriptions  on 
tombstones,  rings,  monuments,  or  coffin  plates  ;  charts  of  pedigrees, 
made  or  adopted  by  deceased  members  of  the  family,  etc.,  have 

^Kapvood  V.  Barnett.  3  Dev.  &  B.  213:      S.    C,    1    How.     (U.    S.)    219, 

(N.  C.)   L.  91:   Elliott  v.  Piersall,   1  Gaines  v.  New  Orleans,   6  Wall.    (U. 

Pet.    (U.  S.)    328;  Jackson  v.  Cooley,  S. )   642. 

8    John.     (N.   Y.j     128;    Waldron    v.  ^Gaines  v.  New  Orleans,  ante. 

Tuttle,   4   N.   H.    371;    Keilv   v.    Mc-  *  Davis  v.  Movies,  76  Vt.  25,  56  A. 

Guire,     15    Ark.     5o5 ;     Crawford    v.  174,  1<8.     See  1  Phill.  Ev.  206,  10th 

Blackburn,    17     Md.     49;      Copes    v.  ed.;  Gee  v.  Ward,  7  E.  &  B.  509. 

Pearce,  7  Gill   (Md.)  247.  ^  Huobard  v.  Lees,  L.   Rep.,   1   Ex. 

==  Jewell  V.  Jewell,  17  Pet.    (U.  S.)  255,  258. 

(270) 


Sec.  82.]       To  Prove  Pedigree  or  Relationship.  271 

severally  been  held  receivable  in  evidence  for  this  purpose.®  And 
it  is  impossible  to  dispense  with  this  kind  of  evidence,  especially 
in-  proof  of  remote  and  collateral  matters  f  but  great  care  should 
be  observed  vhen  the  actual  point  in  issue  in  a  cause  depends 
"wholly  or  chiefly  upon  it.  It  is,  from  its  nature,  very  much  ex- 
posed to  fraud  and  fabrication ;  and  even  assuming  the  declara- 
tion, inscription,  etc,  correctly  reported  by  the  medium  of  evi- 
dence used,  many  instances  have  been  shown  how  erroneous  is  the 
assumption  that  all  the  members  of  a  family,  especially  in  the 
inferior  walks  of  life,  are  even  tolerably  conversant  with  the  par- 
ticulars of  its  pedigree.^ 

Sec.  82.  Evidence  should  come  from  Member  of  Family  or  Un- 
doubted Source. 

The  evidence  should  come  from,  some  one  connected  with  the 
family  whose  pedigree  or  relationship  to  a  deceased  person  is 
sought  to  be  established  by  blood,  or  from  some  one  who  has  some 
personal  knowledge  of  the  family,  or  the  facts  of  which  they 
speak,  or  those  who  have  derived  knowledge  relative  thereto  from 
persons  connected  with  the  family,  or  those  particularly  acquainted 
therewith,  or  the  evidence  will  not  be  received  ;^  as  to  prove  who 
are  heirs  of  a  deceased  person  f  so,  to  prove  who  was  the  mother 
of  a  child,  the  declarations  of  a  father  in  reference  thereto  may  be 
received  f  so  the  declaration  of  any  deceased  person,  as  to  who  were 
his  or  her  heirs  ;*  so  to  prove  the  death  of  a  person  after  the  lapse 

^  In  a  suit  in  which  the  phiintiff  502;  Armstrong  v.  McDonald,  10 
alleged  that  he  was  the  natural  son  Barb.  (N.  Y. )  300;  Binney  v.  Ham. 
of  A.,  a  declaration  by  a  deceased  3  A.  K.  Marsh.  (Ky. )  322;  Craw- 
brother  of  A.  that  the  plaintiff  was  ford  v.  Blackburn,  17  Md.  49;  Kay- 
A.'s  natural  son,  was  held  to  be  in-  wood  v.  Barnett,  3  Dev.  &  B.  (N. 
admissible.  Crispin  v.  Doglioni,  32  C.)  91;  Chapman  v.  Chapman,  2 
L.  J.,  P.  &  M.  109.  Conn.  347;   Everingham   v.   Mesroom,. 

'Hearsay  is  admissible  to  prove  a  2    Brev.    (S.     C. )     461;    Gilchrist  v.. 

matter  of  pedigree  collaterally  in  is-  Martin,  1  Bailey   (S.  C. ),  492;   Webb 

sue.     North  Brookfield  v.  Warren,  16  v.   Richardson,   42   Vt.   465;    Jackson 

Gray    (Mass.)    171.  v.    Cooley,    8   Johns.     (N.     Y.)     128; 

*  See   the   judgment   of   the  master  Elliott    v.    Piersoll,    1    Pet.    (U.    S.) 

of  the  rolls  in  Crouch  v.  Hooper,   16  328:  Waldron  v.  Tuttle,  4  N.  H.  371; 

Beav.   182.  Stein    v.    Bowman,    13    Pet.    (U.    S.) 

^Carter   v.    Buchanan,    9    Ga.   539;  209. 
Jackson    v.    Browner,    18   Johns.    (N.  "Greenwood  v.  Spiller,  3  111.  502. 

Y.)    37:   Moers  v.   Bunker,  29  N.   H.  'United     States     v.     Saunders,     1 

420;    Strickland    v.    Poole,    1    Dallas  Hempst.    (Tenn.)    483. 
(U.    S.),    14;    Kellv   v.   :McGuire.    15  ^  Moffit    v.    Witherspoon,    10    Ired- 

Ark.  555;  Greenwood  v.  Spiller,  3  111.  (N.  C.)    185. 


272  Evidence.  [Chap.  6 

of  a  long  time,  in  which  he  has  not  been  heard  from, ^  But  this 
species  of  evidence,  coming  from  living  persons  connected  with  the 
person  deceased,  and  the  declarations  of  such  deceased  persons, 
are  entitled  to  more  weight  than  those  coming  from  j^ersons  who 
liad  no  connection  with  the  family.^  And  all  such  evidence  is  to  be 
Aveighed  in  view  of  the  circumstances  under  which  the  declara- 
tions were  made,  whether  any  litigation  had  been  commenced 
involving  the  relationship,  and  all  the  circumstances  calculated  to 
throw  any  light  upon  the  motives  or  interest  of  the  person  in 
making  them.^  Before  the  declarations  of  a  deceased  person  can 
be  admitted  in  cases  of  pedigTee  the  relation  of  the  declarant  to 
the  family  must  be  established  by  other  testimony.^  But  where 
the  membership  is  as  difficult  to  prove  as  the  fact  in  controversy 
slight  proof  of  it  will  be  sufficient;  so  in  a  recent  case  in  Xew 
York  where  one  of  the  parties  claimed  title  through  a  deed  dated 
1817,  which  recited  that  the  gi-antors  were  the  sole  heirs  of  a 
former  owner,  it  was  held  that  the  identity  of  the  family  name,  the 
certificate  of  acknowledgment  and  the  custody  by  the  proper  party 
of  the  deeds  showing  title  in  the  prior  owner,  in  view  of  the  lapse 
of  time,  were  sufficient  to  show  membership  of  the  grantors  in  the 
family.  The  gi'antors  w^ere  presumed  to  be  dead  in  view  of  the 
lapse  of  time.^  Testimony  of  a  general  report  of  the  death  of  a 
party  is  admissible  to  prove  his  death  only  when  brought  to  the 
knowledge  of  his  family.^** 

The  reason  for  the  rule  admitting  hearsay  evidence  in  matters 
of  pedigree  is  that  the  evidence  is  based  on  information  received 
in  the  familv.  So  where  a  mother  testifies  as  to  the  ao'e  of  her 
deceased  son  declarations  by  him  and  his  deceased  father  con- 
tradicting the  testimony  of  the  mother  may  be  admitted.^^  Thus 
a  witness  may  testify  to  his  own  age  even  though  all  he  knew 
about  his  age  is  what  his  mother  told  him  and  she  was  then  living 
in  the  county  where  the  trial  took  place.^^     A  witness  has  been 

°  Miner  v.  Boneham,  15  Johns.    (X.  38.5.  59  N.  E.    135,  80  Am.   St.  Rep. 

Y.)     226;     Stouvenel    v.     Stevens,    2  730. 

Daly   (N.  Y.  C.  P.),  319.  ^»  Welch    v.    Xew    York    &e.    Rail- 

« Saunders    v.    Fuller,    4    Humph.  road.  182  Mass.  84,  91  :   64  X.  E.  R. 

(Tenn.)   516.  695. 

^  United     States     v.     Saunders,     1  "  Travellers'  Insurance  Co.  v.  Hen- 

Heinpst.     (Tenn.)     483;     CanjoUe  v.  derson     Cotton    Mills,     (Ky.,     1905), 

Ferrie,  2  Barb.    (X.  Y.)    177.  985  S.  W.  1090. 

« Estate  of  Williams.  128  Cal.  552,  "  McCollum  v.  State,  118  Ga.  308, 

61  P.  670,  79  Am.  St.  Rep.  67.  46  S.  E.  413. 


Young  V.   Shulenburg,   165  N.  Y. 


« V 


Sec.  82.]       To  Prove  Pedigree  or  Relatioxship.  273 

allowed  to  testify  to  the  approximate  age  of  his  elder  brother,  the 
court  saying  that  such  testimony  depended  on  knowledge  acquired 
by  observation  rather  than  hearsay. ^^  A  wife  was  held  competent 
to  testify  as  to  her  husband's  age  when  she  had  lived  with  him 
for  twenty  years  and  with  his  parents  although  she  testified  that 
the  only  information  she  had  on  the  subject  was  gained  from  the 
announcement  of  the  priest  at  the  time  of  her  marriage  and  that 
she  had  never  talked  with  her  husband  about  his  age.  The  court 
says  that,  notwithstanding  her  testimony,  in  view  of  the  length 
of  time  of  her  membership  in  the  family  it  is  scarcely  believable 
that  she  was  not  only  presumptively  but  actually  acquainted  with 
the  exact  age  of  her  deceased  husband  and  of  the  family  tradi- 
tion.^* 

So,  too,  in  questions  of  pedigree  the  declarations  of  deceased 
members  of  a  family  in  reference  to  marriages  are  admissible ; 
but  when  the  marriage  is  essential  to  be  established  as  a  substantive 
fact,  it  cannot  be  established  by  such  declarations.^^  The  declar- 
ations of  deceased  parents  are  proper  evidence  of  the  parentage  of 
the  children.^®  The  date  of  the  birth  of  a  child  may  be  proved  by 
the  declarations  of  deceased  members  of  the  familv,  even  thouah 
there  is  a  family  register  in  which  the  birth  of  the  child  is  reg- 
istered. The  reason  for  this  rule  is,  that  both  species  of  evidence 
are  of  equal  weight  and  character,  the  one  not  being  entitled  to 
any  more  consideration  than  the  other. ^^     But  the  place  of  its 

'^  Hancock     v.      Supreme      Council  rived  their  information  from  persona 

Catholic   Benevolent  Union,   69  N.  J.  connected   or  particularly   acquainted 

308,  55  A.  246.  with  the  family,  but  speak  generally 

"Grand  Lodge  A.  0.  W.  v.  Bartes,  of  what   they   have    heard   or   under- 

(Neb.,   1904),   98  N.  W.   715,  revers-  stood,  such  evidence  is  insufficient  to 

ing  S.  C.  96  N.  VV.  186.  establish  pedigree."     In  another  case. 

The  rule  in  reference  to  this  class  Elliot  v.  Piersoll,  1  Pet.   (U.  S.)   328, 

of   evidence   was   given   by   the   court  where  a  letter  from  a  deceased  mem- 

in    a   case   in    the    United    State   Su-  ber  of  a  family,  stating  the  pedigree 

preme     Court.      Stein     v.     Bowman,  of  the  family,   sworn  to  by  the  wife 

13    Pet.    (U.    S.)    209,   thus:       "The  as   having  been  written   by   her   hus- 

hearsay  evidence   admissible   in  cases  band,    and    as    containing     facts     of 

■of   pedigree   is   limited  to   those   con-  which  he  had  often  spoken  to  her  in 

nected  with  the  family  who  are  sup-  his  life-time,  was  offered,  it  was  held 

posed  to  have  known  the  relationship  that   both    the    letter    and   the   testi- 

existing,   and   must   have    been    made  mony    of    the    wife    were    competent 

before  the  suit  was  commenced."     In  evidence. 

a  New  York  case,  Jackson  v.  Brown-  "  Westfield  v.   Warren,   8   N.  J.    L. 

er,  IS  Johns.   (N.  Y.)   37,  it  was  held  249. 

that    "where    the    witnesses    are   not  '« Chilvers  v.   Race,   196  111.   71,  63 

connected   with   the   family,   have    no  N.  E.  R.  701. 

personal    knowledge    of    the    facts    of  '"Clements   v.    Hunt,    1    Jones    (N. 

-which  they   speak,  atul  have  not  de-  C. ),  400. 

18 


30 


274  Evidence.  [Chap.  ^ 

birth  ^^  cannot  be  established  in  this  way;  or  any  fact 
that  is  susceptible  of  proof  by  witnesses  who  speak  from  their  own 
knowledge.^"  In  questions  of  age  and  pedigree  the  reports  of  the 
boards  of  health  and  census  reports  are  admissible.^^ 

The  hearsay  must  be  from  persons  having  such  a  connection  by 
blood  or  marriage  with  tlie  party  to  whom  it  relates,  that  it  is 
natural  and  likely,  from  their  domestic  habits  and  connections, 
that  they  are  speaking  the  truth,  and  are  not  mistaken."    Declar- 
ations by  a  deceased  person  as  to  her  own  legitimacy  are  evidence.^^ 
So  by  a  deceased  husband  as  to  the  legitimacy  of  his  wife,  and  a& 
to  the  pedigree  of  her  family,  are  evidence.^''     So  the  declaration 
of  a  wife,  as  to  her  husband's  family  f  but  not  the  declarations  of 
her  father,  nor  the  declarations  of  illegitimate  relations.^®     The 
declarations  of  servants  and  intimate  acquaintances  are  not  ad- 
missible.^''    The  declarations  of  a  deceased  person  as  to  the  fact 
of  his  own  marriage  are  evidence."^     The  declarations  of  a  de- 
ceased mother  as  to  the  non-access  of  her  husband  are  not  evi- 
dence, on  grounds  of  policy.^^     But  where  the  non-access  is  ad 
mitted  or  established,  her  declarations  may  be  proof  of  paternity  ' 
Before  any  such  declaration  can  be  admitted  in  evidence,  the  re- 
lationship of  the  declarant  by  blood  or  marriage  must  be  estab- 
lished by  some  proof  independent  of  the  declaration  itself.     It  is 
the  duty  of  the  judge  to  decide  whether  this  relationship  is  proved  ; 
slight  evidence  will,  however,  be  sufficient.^^    Old  depositions  in  a 
suit,  purporting  on  the  face  of  them  to  be  made  by  relations,  but 
not  proved  aliunde  to  have  been  so  made,  are  evidence,^^  the  an- 
tiquity of  the  depositions  dispensing  with  such  extrinsic  proof. 
Although  it  is  necessary  to  give  evidence  dehors  to  connect  the 

"Wilmington      v.      Burlington,     4  ^^Shrewsbury  Peerage,  7  H.  L.  C.  1. 

Pick.    (Mass.)    174;   Shearer  v.   Clay,  =«  Bamford  v.   Barton,  2  M.  &  Rob. 

1    Lit     (Ky.)    260:    Independence    v.  28;  Crispin  v.  Doglioni,  3  Sw.  &  Tr. 

Pompton,    '4     Halst.     (N.     J.)      209;  44;  32  L.  J.,  P.  M.  &  A.  109.. 

Brooks    V.     Clav,     3    A.    K.    Marsh.  "Johnson  v.   Lawson,   2   Bmg.   86; 

(Kv  )   545          '  S.  C,  9  B.  Moore,  183. 

^»  Mima'    Queen     v.     Hepburn,     7  "  B.  X.   P.   112;   R.  v.   Bramley,  6 

Cranch   (U.  S.),  290.  T.  R.  330.                   ^     ,     ,„„      ^     ^ 

"Murray   v.    Supreme  Hive  L.  M.  "  R.  v.  Luflfe,   8  East,   193;   Good- 

of  W.,  iri  Tenn.  664,  80  S.  W.   827.  right  v.  Moss,  Cowp.  594. 

-Whitelocke    v.     Baker,     13     Ves,  3°  Legge  v.  Edmonds,  25  L.   J.  Ch. 

514.  125. 

" Proeur.-Gen.    v.    Williams,   31   L.  "Plant  v.  Taylor,  7  H.  &  N.  237; 

J,  P.  M.  &  A.  157.  31   L.   J.  Ex.  289;    Smith  v.  Tebbitt,, 

"'"Vowles   V.    Young,    13    Ves.    148;  L.  R.,  1  P.  &  M.  354. 

Doe  d.  Xorthey  v.  Harvey,  Ry.  &  M.  ^'  Freeman  v.  Phillipps,  4  M.  &  S. 

297.                    '  486. 


Sec.  83.]       To  Prove  Pedigeee  or  Reflation  ship.  275 

persons  making  them  with  the  family,  yet  where  the  question  is 
whether  A.  be  reLated  to  C,  the  dechirations  of  B.,  who  is  proved 
to  have  been  related  to  A.,  are  evidence  to  prove  C  related  to  A., 
without  evidence  dehors  to  show  B.  related  to  C'  When  the 
judge  has  decided  that  the  evidence  is  sufficient,  he  may  receive  the 
declaration,  although  the  fact  of  relationship  is  the  very  point  in 
issue  in  the  case,'"  and  he  is  not  bound  to  hear  evidence  on  the  voir 
dire  to  rebut  the  evidence  of  relationship.''  It  is  no  objection  that 
the  person  who  made  the  declaration  stood  in  pari  casii  with  the  per- 
son tendering  it  in  evidence.''  In  a  claim  of  peerage  a  widow 
was  admitted  to  prove  the  declarations  of  her  deceased  husband 
in  support  of  her  son's  title,  though  the  hus^and,  if  living,  would 
have  had  the  right  which  the  declarations  went  to  establish.'^  So 
declarations  are  admissible,  though  they  tend  to  show  the  de- 
clarant's own  title  at  the  time,  provided  there  was  no  lis  mota. 
The  relative,  whose  declarations  are  offered,  must  be  proved  to 
be  dead,  before  they  can  be  admitted  in  evidence,  unless,  indeed, 
from  the  circumstances,  his  death  may  be  presumed.'^ 

Sec.  83.  What  is  Pedigree. 

Hearsay  evidence  is  admissible  in  some  States  to  prove  the 
marriage  of  parties  by  proving  cohabitation.^  So  it  is  competent 
to  prove,  by  the  declaration  of  the  parents  of  a  child,  whether 
they  were  married  when  the  child  was  born ;  but  such  evidence  is 
not  admissible  to  prove  that  children  born  in  wedlock  are  illegiti- 
mate by  reason  of  non-access,'  so  such  evidence  is  admissible  to 
prove  whom  a  man  married,  or  whom  a  woman  married,  what 
children  they  had,  whether  legitimate  or  illegitimate,  that  either 
died  abroad  ;  and  these  facts  may  be  established  by  the  declarations 
of  deceased  members  of  the  family;  but  the  declarations  of  those 

'  33  Alonkton  v    Att  -Gen.   2   Russ.   &       to  be  received.     A  deposition  of  a  de- 

AT  ,    i-r  ^^^-^^^  ^.pjjpp^j   relative,   taken   on   a    commis- 

-  Jenkins  v    Davies,   10  Q.  B.   314.       sion  of  inquiry  as  to  the  next  of  kin 

"Cited  by  ABBOTT,  C.  J.,  m  Doe  d.  ^-.eS^-  ^     Eisenlohr,    38    N.    Y. 

Tilman  v.  Tarver,  Ry.  &  M.   141.  oor 

3"  Tpnkins  v    Davies,  supra.    But  m  /Jo. 
Plant  V    Ta>^or    J^'e    it  (vas  doubted  ^  Stevens    v.    Moss,    Cowper,    491 

wtther-  a   'dSl^ratio'n    by    a   person  Bowles  v.    B.ngham,   2   Munf.    (Va.) 

.obviously   in   his  own  interest  ought  44-. 


276  Evidence.  [Chap.  6 

not  connected  witli  the  family  (as  neighbors  or  acquaintances)  are 
not  receivable.^ 

A  statement  as  to  pedigree  is  admissible  to  prove  a  negative  as 
well  as  a  positive  fact.  So,  where  a  woman  deposits  funds  in  a 
bank  "  in  trust  for  son  Thomas  "  it  was  held  in  an  action  by 
her  administrator  to  recover  the  deposit  that  statements  by  her  - 
during  her  lifetime  to  the  effect  that  she  had  no  children  were  ad- 
missible.* Although  the  term  pedigTee  includes  the  facts  of  birth, 
marriage  and  death,  and  the  time  when  these  events  happened, 
these  several  facts  or  either  of  them  do  do  not  of  themselves  con- 
stitute pedigree,  so  the  age  of  the  prosecutrix  in  a  jirosecution  for 
rape  is  not  a  question  of  pedigree.^  It  has  been  held  that  the  pedi-  I 
gree  of  an  animal  may  be  proved  by  reputation.^  I 

Sec.  84.  Old  Documents,  Inscriptions,  Etc.,  Admissible  to  Es- 
tablish. 

So  in  such  cases  recitals  in  old  deeds  are  evidence  ;^  inscriptions 
on  old  gravestones,  the  finding  of  a  special  verdict  between  other 
members  of  the  family  stating  a  pedigree,  the  statement  of  a  pedi- 
gree in  an  old  bill  in  chancery,  as  well  as  herald  books  and  entries 
in  family  bibles  f  but,  so  far  as  the  allegations  in  a  bill  in  chan- 
cery are  concerned,  it  is  proper  to  say  that  generally,  under  the 
modern  rules  of  evidence,  such  evidence  is  not  regarded  as  admis- 
sible ;  but  if  the  circumstances,  the  relations  of  the  parties  and  the 
nature  of  the  issue  are  such 'as  to  afford  no  ground  for  supposing 
that  the  orator's  mind  had  any  bias,  and  that,  so  far  as  these  facts 
are  concerned,  he  had  no  interest  to  serve,  there  can  be  no  ques- 
tion but  that  the  evidence  would  be  received  for  what  it"  was 

^Vowles  V.  Young.  13  Ves.  Jr.  140;  v.  Hyatt,  51  Kan.  504.  32  P.  1105,  37 

Whitlock  V.  Baker,  id.  511.  Am.'St.  Rep.  304.     Where  possession 

*  Washington  v.   Bank  for   Savings,  has  been  held  under  ancient  deeds  re- 

etc,  171  N.  Y.   166,  63  N.  E.  831,  89  citals  of  descent  in  the  deeds  are  evi- 

Am.   St.  Rep.  800.  dence  of  the  descent  as  there  stated. 

'People  V.  Mavne,  118  Cal.  517,  50  Wilson  v.  Braden   (W.  Va.,  1904),  49 

P.  654,  62  Am.  St.  Rep.  250.  S.  E.  409. 

"  Jones  V.  Memphis  &  A.  C.  Packet  '  Curtis     v.     Patton,     6     S.     &     R. 

Co.   (Miss.,  1902),  31  So.  201.  (Penn.)    135;      Kidney   v.   Cockburn, 

'Little  V.  Palister,  4  Me.  209:  Bui-  2   R.  &  M.   163;   Taylor  v.  Cole,  7  T. 

ler's  Nisi  Prius,  233,  294:   IMorris  v.  R.    3 ;      Lovell    v.    Arnold,    2    Mmif. 

Vandever,  1  Dal.   (U.  S.)   67;  Paxton  (Va.)      167;      Pegram    v.    Jabell,    2 

V.  Price.  1  Yeates   (Penn.).  500.  A  re-  Harr.  &  Munf.    (Va.)   281;   Whittuck 

cital    of    descent    by   a    relative   in   a  v.  Waters,  4  C.  &  P.  376;     Goodright 

deed  is  admissible  in  evidence :   King  v.  Moss,  2  Cowp.  594. 


Sec.  84.]       To  Pkove  Pedigkee  or  PiELATio^^siiir.  277 

worth  in  the  establishment  of  a  pedigree.^  So  statements  in  old 
wills  bearing  upon  questions  of  pedigree  or  relationship,  although 
the  will  is  canceled,  and  never  was  operative,  but  which  was  found 
among  the  papers  of  the  testator,  a  deceased  member  of  the  family, 
^vhose- pedigree  are  in  question,  are  admissible."  So  a  register  of 
births  and  marriages  kept  in  the  records  of  a  town  is  admissible  on 
questions  of  pedigree-.^  So  ex  parte  affidavits  taken  abroad  have 
been  held  admissible  to  prove  pedigi-ee,  and  to  establish  bound- 
aries ;  also  to  establish  the  identity  of  a  person.^  So  depositions 
of  deceased  witnesses-,  used  in  a  cause  between  other  parties,  are 
admissible  upon  a  question  of  pedigTce,  whether  taken  before  or 
after  the  litigation  commenced  in  which  the  question  of  pedigree 
is  involved.''  Inscriptions  upon  rings  worn  by  a  former  member 
of  the  family  are  held  admissible  to  prove  pedigree.^ 

Lord  Ekski^^e,  in  commenting  upon  the  class  of  evidence  com- 
petent to  prove  a  pedigree,  said :  "  Upon  questions  of  pedigree,  in- 
scriptions upon  tombstones  are  admitted,  as  it  must  be  supposed 
that  the  relations  of  a  family  would  not  permit  an  inscription 
without  foundation  to  remain.  So  engravings  upon  rings  are 
admitted,  upon  the  presumption  that  a  person  would  not  wear  a 
'ring  with  an  error  upon  it."  Charts  of  pedigree  hung  up  in  a 
family  mansion,  or  in  a  situation  to  indicate  that  it  was  recognized 
and  accepted  by  the  family  as  correct;^  coat  armor,^''  and  mural 
inscriptions,  giving  an  historical  account  of  a  family,  placed  in  a 
chancel  which  was  formerly  used  as  a  burial  place  for  the  family, 
located  in  a  parish  where  the  family  were  long  resident  pro- 
prietors, have  been  also  held  admissible;  and  where  the  articles 
themselves  cannot  be  produced,  copies  thereof  may  be  used.^^  In 
this  case,  which  involved  a  question  of  pedigi-ee,  the  existence  of 
the  mural  inscriptions  and  their  obliteration,  about  twenty-four 
years  before  the  trial,  was  established ;  and  the  court  held  that  a 

3  Berkley's    Peerage    Case,    2    Bing.  case    of    Bordereau    v.    Montgomery; 

8G  Jenkins  v.  Tom.  et  al.,  Wash.   (U.S.) 

^Johnson     v.    Earl    Pembroke,     11  123 ;  Lovell  v.  Arnold,  2  Munf.   (Va.) 

East,  503.  167. 

^  Miner  v.  Boneham,  15  Johns.    (N.  n^owles  y.  \oung,  13  Ves.   144. 

Y. )   226.       See  §  196,  post.  "  Goodright     v.     Moss,     2     Cowper, 

"xTvlor    V.    Simpson,    2    Dall.     (U.  594. 

S.)     117;      Sturgeon     v.     Waugh,     2  ^"Cooke's  Littleton,   27  o. 

Yeates    (Penn.),  467;   Lilly  v.  Kintz-  "  Slaney    v.    Ward,    1    My.    &    Cr. 

miller.  1  id.  28.  354. 

'Peake's   Ev.    24,  note,   citing  MS. 


2Y8  Evidence.  [Chap.  6 

copy  thereof  was  competent  evidence,  provided  the  genuineness 
of  the  original  inscriptions  was  established.  This  class  of  evi- 
dence, however,  may  always  be  impeached,  and  Mr.  Phillips,  in 
vol.  1,  p.  222  of  his  work  on  Evidence,  gives  several  instances  in 
which  that  species  of  evidence  has  been  completely  overthrown. 
Xone  of  this  species  of  evidence  is  conclusive,  but  its  genuineness 
and  the  weight  to  be  given  it  depend  largely  upon  the  circum- 
stances of  each  case,  the  condition  in  which  it  was  found,  and  a 
multitude  of  circumstances  that  tend  to  convince  the  mind  that  a 
tiling  is  real  or  spurious,  in  reference  to  which  no  rules  can  be 
given. 

So  it  may  be  said,  generally,  that  any  species  of  evidence  tending 
to  show  the  declarations  of  deceased  relatives  upon  the  question  of 
relationship,  which  is  established  as  genuine,  and  which  leaves  no 
doubt  as  to  their  understanding  of  the  matter,  is  always  admissible 
to  establish  pedigree.  The  register  of  births,  deaths  or  marriages, 
in  a  family  bible,^"  to  which  all  the  family  has  access,  gives  it  that 
validity  which  it  would  not  have  if  the  book  remained  in  the  ex- 
clusive possession  of  the  father.  Entries  in  family  bibles  have, 
therefore,  become  common  evidence  of  pedigree  where  there  is  no 
register  of  births  or  baptism,  or  entries  in  the  diary  of  a  physician 
who  was  present  at  the  birth  of  a  child.^^  So,  memoranda  in  other 
books,  as  an  almanac,"  a  prayer  book,^^  as  well  as  entries  in  any 
other  documents,  books  or  papers,  kept  in  and  accessible  to  the 
family,  are  admissible. 

Declarations  in  a  family,  descriptions  in  wills,  inscriptions  upon 
monuments,  in  bibles  or  other  books,  and  in  registry  books,  are 
all  admitted,  upon  the  principle  that  they  are  the  natural  effusions 
of  a  party  who  must  know  the  truth,  and  who  speaks  upon  an 
occasion  where  the  mind  stands  in  an  even  position,  without  any 
temptation  to  exceed  or  fall  short  of  it.^® 

"Leggett    V.    Boyd,    3    Wend.     (N.  ''Leigh's      Peerage,      printed      in 

Y.)    376:   Goodright   v.    Moss.   Cowp.  1829,  p.  310. 

594;      Whitloek   v.   Baker,   13  Vesey,  ^^  Per   Lord    Eldon,   Whitelocke    v. 

511;   Higham    v.    Ridgway,    10    East,  Baker,     13     Ves.     514;     Higham     v. 

120.                                          '  Ridgway,      10     East,     109;      Berkley 

''Ames     V.     Middleton,     23     Barb.  Peerage  Case,  4  Camp.  418.    And  see 

(N.  Y. )    571.  the   Slane   Peerage  Case,   5   CI.   &    F. 

"Herbert  v.  Tucknall,  L.  Raym.  23;  and  the  Vaux  Peerage,  ib.  526. 
84. 


Sec.  85.]       To  Prove  Pedigree  or  Relationship.  2Y9 

Sec.  85.  Entries  in  Family  Bibles,  and  other  Family  Records. 

Entries  in  a  family  bible  are  admissible  in  evidence,  on  the 
ground  that  being  in  that  place,  they  are  to  be  taken  as  assented 
to  by  those  having  the  custody  of  the  book;  proof  of  the  hand- 
writing of  the  entries  is  therefore  immaterial.^     But  a  record 
made  in  a  family  bible  is  hearsay  evidence  and  not  admissible 
where  the  person  making  the  record  is  alive  and  can  be  examined.^ 
It  seems,  however,  that  in  the  case  of  any  other  book  the  entries 
must  be  proved  to  have  been  made  by  a  member  of  the  family  f 
or  that  they  have  been  treated  by  a  relative  as  a  correct  family 
memorial.*    A  pedigree  which  has  long  hung  up  in  a  family  man- 
sion is  good  evidence  in  such  cases  f  or  a  marriage  certificate  kept 
•by  the  family.^    A  minute-book  of  a  visitation,  signed  by  the  heads 
of  the  family,  has  been  admitted,  though  produced  from  a  private 
library."^     A  signed  pedigree,  delivered  to  the  Herald's  College, 
by  virtue  of  a  commission  under  which  the  college  was  authorized 
to  receive  and  enroll  such  pedigi-ees  was  admitted.^    So,  a  paper  in 
the  handwriting  of  a  deceased  member  of  the  family,  purporting  to 
give  a  genealogical  account  of  the  family,  was  held  admissible, 
though  never  made  public  by  the  writer,  erroneous  in  many  par- 
ticulars, and  professing  to  be  founded  partly  on  hearsay.^    So,  a 
ring,  worn  publicly,  stating  the  date  of  the  person's  death  whose 
i?ame    is   engaved   upon   it.      So,    a    description    of   a   party   as 
"  daughter  and  heir,"  in  a  deed  signed  by  the  party  so  described.^** 

^Hubbard    v.    Lees,    L.    R.,    1    Ex.  thereby     give     authenticity     to     it. 

255.        An   entry   made   in   a    family  Union  Central  Life  Insurance  Co.  v. 

bible  is   admissible  in  evidence  on   a  Pollard,  94  Va.   146,  2G  S.  E.  421,  64 

question    of    pedigree    although     the  Am.  St.  Rep.  715.     See,  also,  Berkley 

entry  was  not  made  bv  a  member  of  Peerage    Case,     4     Champ.     421     per 

the  family.     The  admissibility  of  an  Lords     Ellenborough     and     Redes- 

entry  in  a  familv  bible  does  not  de-  dale. 

pend    upon    the    handwriting    or    au-  'People  v.  Mayne,  118  Cal.  517,  50 

thorship  of  the  entry,   but  upon  the  P.  654,  62  Am.  St.  Rep.  256. 
■fact   that   it   is   in   the   family   bible.  'Tracy   Peerage,  Hubback  Evid.   of 

It  is  of  the  nature  of  a  record,  and.  Succession,  673. 
beinc  produced  from  the  proper  cus-  *  Hood  v.  Beauchamp,  8  Sim.  29. 

tody!  is   itself   evidence.     The   reason  ^Goodright  v.  Moss,  Cowp.   594. 

why    it    is    admissible,    although    the  °  Jenkins  v.  Davies,  10  Q.  B.  314. 

handwriting  be  unknown  or  made  by  '  Pitton  v.  Walker,  1  Stra.   162. 

others  than  the  family,  is  simply  be-  '  Shrewsbury  Peerage  Case,  7  H.  L. 

cause  the   bible  being  in   the   family,  C.  19.  .,,  ^  ^   t.  , 

where  all  have  access  to  it,  the   pre-  » Monkton  v.    Att.-Gen.,   2   Russ.   & 

sumption    is    that    the    entry    would  My.   147. 

not    be    permitted    to    remain    if    the  'Menkins   v.   Davies,  supra;  Smith 

whole   family  did  not  adopt  it,  and  v.  Tebbitt,  L.  R  ,  1  P.  &  M.  354. 


280  Evidence.  [Chap.  6 

But  an  old  pedigree,  professing  on  the  face  of  it  to  be  compiled 
from  '"  registers,  wills,  monnmental  inscriptions,  family  records 
and  history,"  and  going  back  to  a  fabulous  date,  is  not  evidence, 
though  proved  to  be  signed  by  members  of  the  family,  except  &o 
far  as  it  relates  to  persons  presumably  known  to  them,  or  respecting- 
whom  they  may  have  obtained  information  from  other  members  of 
the  family.  Whether  the  mere  recognition  of  a  pedigree  by  a  de- 
ceased ancestor  wnll  make  it  legitimate  evidence  (except  against 
claimants  under  him),  is  doubtful."  The  ground  upon  which  the 
inscription  on  a  tombstone,  or  a  tablet  in  a  church,  is  admitted  is, 
that  it  is  presumed  to  have  been  put  there  by  a  member  of  the 
family  cognizant  of  the  facts,  and  whose  declaration  would  be 
evidence. ^^  And  on  the  issue  of  the  age  of  a  person  a  witness  may 
testify  to  his  recollection  of  an  inscription  on  a  tombstone,  al- 
though such  evidence  is  open,  of  course,  to  impeachment  or  con- 
tradiction, even  though  the  inscription  is  not  shown  to  have  been 
made  by  or  under  the  direction  of  a  deceased  relative  if  it  has  been 
publicly  exhibited.  It  is  presumed  that  a  relative  of  a  family 
would  not  permit  an  erroneous  inscription  to  remain.-^^  The 
memoranda  of  a  parent  are  good  evidence  to  jDrove  the  time  of  the 
birth  of  a  child.^"* 

Sec.  86.  Declarations  of  Deceased  Persons. 

But  the  declaration  of  a  father  as  to  the  place  of  birth  of  a  son 
was  considered  inadmissible,  as  being  a  mere  question  of  locality, 
and  not  of  pedigi-ee.^    An  inscription  on  a  tombstone,  stating  the 

"  Davies    a-.    Lowndes,    6    M.    &    G.  ancestors,    and    distinguished     R.     v. 

'R-  471.  Erith,   supra.     Accord,   per  Kixders- 

"  Parke,       B.,       in       Davies       v.  ley,  V.-C,  in  Bauer  v.  Mitford,  7  W. 

Lowndes,  512.  R.  570,  June,   1859;   and  declarations 

"  Boyett  V.   State,   130  Ala,    77,   30  of  a   party,   showing   that  he   has   or 

S,   475,  89  Am.  St.  Rep.   19.  had  relations  living  at  A.,  have  been 

'*  Herbert  v.  Tuckal,  T.  Raym.  84;  admitted    to    identify    persons    whose 

Brune  v.  Rawlings,  7  East,  290.  existence   is  proved   aliunde.    Rishton 

'  R.  V.  Erith,  8  East,  542.       So,  in  v.   Nesbitt,  2  M.  &  Rob.  554:      Hood 

Shields   v.   Boucher,   1    De   6.   &   Sm.  v.     Beauchamp,     Hubback     Evid.     of 

40,  Wilde,  C.  J.,   rejected,  upon   the  Succession,   4G8,   cited    1   Tayl.   Evid., 

trial   of   an    issue,   declarations    of   a  §   582.     The  declarations   of   a   party 

relation    as   to   the   part   of   England  as  to  his  own  illegitimacy,   or   phice 

from  which  he  had  originally   come;  of    birth,    seem    inadmissible    except 

hut    on     moving    for     a     new     trial,  against    himself,    or    tliose    claiming 

Knight-Bruce,     V.-C,     expressed     a  under  him  by  title  posterior   to   the 

strong  opinion  in  favor  of  their  ad-  declaration.        R.  v.  Rishworth,   2   Q. 

missibility   in    a    case   of   mere   gene-  B.  476. 
alogy,    and   with   a   view   to    identify 


Sec.  86.]       To  Peove  Pedigree  ok  Pielatioxship.  281 

death  of  a  party  at  the  age  of  90,  was  admitted  as  evidence  of  the 
age.^     So,  an  old  tracing  from  an  effaced  monument  has  been  ad- 
mitted f  a  hill  in  chancery  by  a  father,  stating  his  pedigi-ee/    An 
answer  in  chancery,  sworn  ante  litam  motam,  seems  unexception- 
able as  evidence  of  pedigree  incidentally  set  fortli  in  it.^     Tha 
recital  in  a  family  conveyance  by  a  trustee  is  evidence  of  parent- 
age.®   So  an  old  and  cancelled  will  has  been  allowed  as  evidence  of 
the  existence  and  relative  ages  of  certain  deceased  members  of  the- 
family  from  whom  both  parties  derived  title.'^    The  probate  of  a 
will  is  not  primary  evidence  for  this  purpose.^    The  will  itself  and 
signature  of  the  testator  must  be  proved,  unless  the  age  of  the  docu- 
ment or  other  circumstances  dispense  with  such  proof;  it  is  said, 
however,    that  the   "  ledger   book "    or    "  original   rolls "    of  the 
Ecclesiastical  Court,  containing  an  enrollment  of  the  will,  are  ad- 
missible evidence  to  j^rove  relationship.^     It  is  not  necessary  that 
the  declarations   should  be  contemporaneous  with   the  facts   de- 
clared ;  thus  a  person's  declaration,  that  his  grandmother's  maideix 
name  was  A.  B.  is  admissible.^'^    Xor  is  it  necessary  that  the  fact 
declared  should  be  in  the  personal  knowledge  of  the  declarant;  thus 
the  declaration  of  A.  as  to  what  he  heard  from  B.  is  admissible,  if 
both  be  relations.-'^     Declarations  of  tlie  l-ind  above  described  are 
strictly  admissible  only  in  inquiries  relating  to  descent  or  relation- 
ship, or  in  tracing  the  devolution  of  property.     In  proving  recent 
events,  such  as  the  place  of  birth,  age,  death,  etc.,  of  a  person, 
where  that  fact  is  directly  in  issue,  stricter  proof  may  be  reason- 
ably required.     General  reputation  is  good  evidence  in  pedigree 
cases,  as  of  heirship,^^  or  marriage  ;^^  but  if  it  appears  on  cross- 
examination  or  otherwise  that  the  witness  is  speaking  of  evidence 
given  him  by  some  individual,  even  as  to  general  reputation,  the 
evidence  ceases  to  be  admissible.^* 

^  Eider    v.    Malbone,    cor.    Little-  'Johnson  v.  Earl  of  Pembroke,   11 

DALE,  J.,  cited  id.,  pp.  169,  170.  East,  504. 

^  Slanev  v.  Wade,  7  Sim.  .595.  '  Wilde  v.  Ormerod,   1  M.  &  Robb. 

*  Taylor  v.  Cole,  7  T.  R.  3.  n.     Bnt  466 :   Dike  v.  Polhill,  Ld.  Rayni.  744. 
this   is  contrary  to  the  resolution   of  ^  B.  X.  P.  246. 

the   judges   in    the    Banburv   Peerage  ^^  Lord   Brougham,  C,  Monkton  v. 

Case,  2  Sehv.  N.  P.,  2nd  ed.  773.  and  Att.-Gen.,  2  Rviss.  &  My.  158. 
to  Boileau   v.  Rutlin.   2  Exch.  678.  "  Id.   162. 

=  In  the  Wharton  Peerage  Case,   12  «  Bridger  v.  Huett,  2  F.  &  F.  35. 

CI.  &  Fin.  295,  an  answer,  sworn  but  "  Evans  v.  Morgan,  2  C.  &  J.  453 ; 

not  filed,  was  rejected  as  evidence  of  Shedden  v.  Patrick,  2  Sw.  &  Tr.  170; 

pedigree.  30  L.  J.,  P.  M.  &  A.  217;   Campbell 

'Slaney  v.  Wade,  supra.  v.  Campbell,  L.  R.,  1  H.  L.  Sc.  201. 

"  Shedden  v.  Patrick,  supra. 


CHAPTER  VII. 
Hearsay. — Ancient  Possessions. 

Section  87.  Hearsay  admissible  to  prove,  when. 

88.  Hearsay  not  admissible  to  prove  private  title. 

89.  Perambulations. 

90.  Old  documents. 

91.  IManorial  documents. 

92.  Maps. 

93.  Verdicts,  etc. 

94.  Judgments,  decrees  and  orders. 

95.  Grounds  upon  which  these  rules  are  founded. 

96.  Position  of  parties  presumed  to  be  as  stated  in  ancient  documents. 

97.  Proof  of  modern  exercise  of  right. 

Sec.  87.  Hearsay  Admissible  to  prove,  when. 

Upon  the  same  principle  and  for  the  same  reasons  that  hearsay 
evidence  is  admitted  upon  questions  of  pedigree,  are  ancient  docu- 
ments admitted  upon  questions  of  ancient  possessions  and  in  sup- 
port of  them,  and  instruments  which  are  more  than  thirty  years 
old  are  treated  as  ancient  documents,  and  when  there  is  nothing 
suspicious  about  them,  they  are  presumed  to  be  genuine  without 
express  proof,  the  witnesses  being  presumed  to  be  dead,  and  when 
they  are  found  in  the  proper  custody,  and  are  corroborated  by  pos- 
session under  them,  they  prove  themselves.^ 

Ancient  documents,  purporting  to  be  a  part  of  transactions, 
and  not  a  mere  narrative  of  them,^  are,  under  certain  qualificat- 

'Hedger    v.     Ward.     15     B.     Mon.  v.  Gittings,  2  Har.  &  J.    (Md.)    380; 

(Ky.)    106:   Doe  v.  Roe,  31   Ga.  593;  Green    v.    Chelsea,   24   Pick.    (Mass.) 

Carter  v.  Chaudron,  21  Ala.  72;   Doe  71;      Jackson  v.   Blanshaw,   3   Johns. 

V.    Eslaver,    11    id.    1028;      Beall    v.  (N.   Y.)    292;   Troup  v.   Hurlbut,    10 

Deering,   7   id.   124.     It  is  an   estab-  Barb.    (N.  Y.)    354;  Clark  v.   Wood, 

lished   rule   of   evidence   that   a    deed  34    X.    H.    447;   Zeigler    v.    Houtz,    1 

more   than   thirty   years   old   may   be  Watts    &    S.     (Pa.)     533;   Duncan    v. 

given   in   evidence,   without   proof    of  Beard,  2  Nott  &  M.    (S.  C. )   400. 
its  execution,  when  found  in  the  pos-  ^  Davis  v.  Moyles,  76  Vt.  25,  56  A. 

session  of   the  party   claiming   under  174,  178. 

it,   and    the    possession   of   the    thing  Thus,   upon    a    question   as   to   the 

conveyed    has    followed    the    convey-  right  of  a   lord   of  a   manor   to   hold 

ance.        Stockbridge    v.    West    Stock-  certain    land   within   the   manor    free 

brido-e,    14    Mass.    257 ;      Winston    v.  from    common,    several    counterparts 

Guathmev,    8     B.    Mon.     (Ky.)     19;  of    leases    found    among    the    niuni- 

Craue  v.' Marshall,   16  Me.  27;  Hall  ments  of  the  lord  of  the  manor,  from 

(282) 


Sec  87.] 


Hearsay — Ancient  Possessions. 


283 


ions,  which  will  be  noticed,  receivable  as  evidence  that  those  trans- 
actions really  occurred.  And,  in  this  sense,  the  documents  may  be 
called  hearsay  evidence  of  ancient  possession.  Such  evidence  is 
very  commonly  adduced  in  practice  to  corroborate  modern  use  or 
possession.  Rent  rolls,  where  payments  have  been  made,  are  good 
evidence  to  prove  fee-farm  rents,^  or  for  other  purposes.''  Old  court 
rolls  have  been  admitted  to  prove  a  prescriptive  right  to  wreck  in 
the  lord  of  a  manor.^     It  has  been  questioned,  however,  whether 


which  it  appeared  that  the  land  had 
been  demised  by  the  lord  free  from 
common,  were  held  to  be  receivable  in 
evidence.  Clarkson  v.  Woodhouse,  5 
T.  R.  413,  n.;  S.  C,  3  Doug.  189. 
See,  also,  Barnes  v.  Mawson.  1  M.  & 
S.  78,  supra ;  loathes  v.  Newit,  4 
Price,  355;  8  Price,  562;  Fisher  v. 
Graves,  3  Eag.  &  Y.  1180.  To  show 
the  practical  location  of  a  boundary 
line  and  acquiescence  in  it,  between 
the  town  of  Rochester  and  the  Har- 
denburgh  patent,  a  line  some  fifteen 
miles  long,  ancient  deeds  and  agree- 
ments between  parties  interested  in 
the  line,  and  statements  in  the  town 
records  of  Rochester,  are  competent 
evidence,  if  made  ante  litem  niotam. 
Under  the  same  limitations,  a  survey 
of  the  line  and  an  agreement  to 
abide  bv  it,  adhered  to  for  many 
years,  though  not  legally  binding 
upon  the  parties,  are  competent  evi- 
dence to  establish  the  line  thus 
agreed  upon.  Hunt  v.  Johnson,  19 
N.  Y.  279. 

The  authority  of  an  ancient  deed 
is  not  established  by  producing  it 
from  the  proper  custody  and  show- 
ing it  to  have  existed  for  even  sixty 
years,  unless  it  be  also  shown  that 
possession  has  been  taken  or  some 
unequivocal  act  done  under  it,  or 
that  its  validity  has  been  admitted 
by  parties  having  an  adverse  inter- 
est. Wilson  v.  Betts,  4  Den.  (N.  Y.) 
201.  Thirty  years'  uninterrupted 
possession  luideV  a  deed  will  entitle 
it  to  be  read  in  evidence  without 
proving  its  execution.  Clark  v. 
Owens,  18  N.  Y.  434. 

In  an  action  of  trespass,  Rogers  v. 
Allen,  1  Camp.  309,  upon  issue  joined 
on  a  plea  of  justification  by  virtue 
of  a  prescriptive  right  of  fishery  ap- 
purtenant to  a.  manor,  old  licenses  on 


the  court  rolls,  and  leases  granted  by 
the  lords  of  the  manor,  in  considera- 
tion of  certain  rents,  to  fish  in  the 
locus  in  quo,  were  held  to  be  receiv- 
able evidence.  Heath,  J.,  in  this 
case,  observed  that  he  could  not  dis- 
tinguish the  licenses  from  old  leases, 
which  were  always  received  in  evi- 
dence in  favor  "^of  those  claiming 
under   the   lessors. 

^  Newburgh  v.  Newburgh,  12  Vin. 
Ab.  T,  b.  43. 

MVoodnorth  v.  Cobham,  1  Eag.  & 
Y.  802.  In  12  Vin.  Ab.  A,  b.  66,  it 
is  said,  a  rental  is  but  weak  evidence, 
unless  payment  is  also  proved,  and 
not  sufficient  per  se;  and  by 
Comyns,  B.,  12  Vin.  Ab.  90,  pi.  14, 
rentals  without  money  received  and 
paid  upon  them,  are  nothing.  In 
Lancum  v.  Lovell,  6  C.  &  P.  441,  an 
ancient  counterpart  of  feoffment  pro- 
duced from  corporation  muniments 
was  rejected,  because  no  rent  had 
been  received  in  respect  of  the  prop- 
erty. 

='Biddulph  V.  Ather,  2  Wils.  23. 

In  Clarkson  v.  Woodhouse,  5  T.  R. 
413,  n.  Parochial  descriptions  in 
leases  are  evidence  upon  questions  of 
public  right,  where  reputation  is  ad- 
missible. Plaxton  V.  Dare,  10  B.  & 
C.  17,  Lord  Mansfield,  C.  J.,  said 
that  the  case  before  him  differed 
from  the  case  of  Lord  Pimfret  v. 
Smith,  6  Bro.  B.  C.  440,  where  Lord 
Pomfret  offered  a  lease  by  himself  or 
his  predecessor,  describing  the  prem- 
ises in  dispute  as  lying  within  the 
limits  of  Lord  Pomfret's  estate,  the 
question  being  on  the  boundaries. 
But  on  reference  to  the  report  of 
that  case,  it  would  seem  that  no  part 
of  the  lease,  upon  the  admissibility 
of  which  the  principal  question  arose. 


284 


Evidence. 


[Chap.  7 


ancient  leases  are  proper  evidence  against  strangers,  of  the  bound- 
ary of  the  property  conveyed. 

An  old  map  of  lands  annexed  to  a  deed  seems  to  stand  on  the 
same  footing  as  a  description  contained  in  the  deed  itself,  and  to 
be  admissible  in  evidence  where  it  is  part  of  the  act  by  which 
property  is  to  be  conveyed.®  But  where  a  map  or  sur^^ey  is  not 
connected  with  any  act  of  ownership,  it  appears  to  be  inadmissible 
evidence  to  prove  the  parcels  of  an  estate,  at  least  so  far  as  respects 
the  principle  of  evidence  under  consideration.'' 

But  the  mere  existence  of  a  deed  for  more  than  thirty  years, 
without  any  proof  of  accompanying  possession,  is  not  enough  in 
any  case  to  authorize  it  to  be  read  in  evidence  as  an  ancient  deed, 
without  proof  of  its  execution.^ 


applied  to  the  place  in  dispute,  but 
only  the  words  of  an  exception  con- 
tained in  it,  and  therefore  it  was 
contended  that  the  lease,  not  contain- 
ing a  demise  of  the  lands  in  ques- 
tion, was  not  evidence  of  an  act  of 
ownership,  but  only  showed  that  the 
lands  were  excepted  by  a  description 
injurious  to  the  rights  of  a  stranger, 
against  whom  that  description  was 
attempted  to  be  used. 

«Gilb.  on  Ev.  (3d  ed.)  78,  citing 
Yeates  v.  Connop.  Hil.  Ass.  1702. 
See,  also.  1  Stra.  95,  n. ;  4  X.  &  M. 
302;  1  Lord  Raym.  734;  Hughes  v. 
Lakin.  7  C.  &  P.  481;  Wakeman  v. 
West,  7  C.  &  P.  479;  Jackson  v. 
Marsh,  6  Cow.  281;  Hathaway  v. 
Power,  6  Hill,  453. 

'Anon.,  1  Stra.,  95;  Bridgman  v. 
Jennings,  1  Lord  Eayni,  734;  B.  N. 
P.  283;  by  Lord  Kenyon,  C.  J.,  in 
Pollard  V.  Scott.  Peake,  18.  See 
Wakeman  v.  -West,  7  C.  &  P.  479; 
Doe  V.  Seaton,  4  N.  &  M.  81;  Don- 
nison  v.  Elsley,  2  Eag.  &  Young, 
1396.  n.;    12  Vin.  Ab.  90,  pi.  12. 

^Ridgeley  v.  Johnson.  11  Barb 
(X.  Y^)  527;  Homer  v.  Cilley,  14  N 
H.  85;  Bank  of  Middlebury '  v..  Rut 
land,  33  Vt.  414;  Dishager  v.  Mait 
land,  12  Leigh  (Va.),  524;  Fairly  v 
Fairly,  38  Miss.  280;  Guinor  v.  Cot 
ton,  49  Tex.  101;  Johnson  v.  Sim 
mons,  50  Tex.  521 ;  Middleton  v 
Mass,  2  X.  &  McCord  (S.  C),  55; 
Blakeman  v.  Doughty,  40  X.  J.  L. 
319.     In  Martin   v.   Rector,  24   Hun 


(N.  Y.),  27,  upon  the  trial  of  an  ac- 
tion of  ejectment,  the  plaintifT  pro- 
duced two  leases  sixty  years  old.  A 
witness  testified  that  the  subscribing^ 
witnesses  were  dead,  and  that  from 
an  inspection  of  many  similar  leases 
he  was  familiar  with  their  signa- 
tures, and  believed  them  genuine; 
that  the  lessor  was  dead;  tliat  he 
had  seen  him  write,  and  believed  his 
signature  genuine.  It  was  held  that 
in  the  absence  of  proof  of  possession 
under  the  leases,  or  as  io  their  cus- 
tody, they  were  not  admissible.  In 
Missouri,  by  statute,  proof  of  the  ex- 
ecution of  a  deed,  where  the  record  is 
thirty  years  old,  is  dispensed  with, 
but  it  is  held  that  this  does  not  dis- 
pense with  the  necessity  of  proving 
the  loss  of  the  deed  before  a  copy 
of  the  deed  can  be  used.  Crisper  v. 
Hannavan,  72  Mo.  548.  The  princi- 
ple which  allows  ancient  deeds,  un- 
der certain  circumstances,  to  prove 
themselves,  has  no  application  to 
cases  in  which  the  deed  does  not  ap- 
pear upon  its  face  to  have  been  reg- 
ularly made,  and  in  form  sufficient 
for  the  object  for  which  it  is  set  up. 
Reaume  v.  Chambers,  22  Mo.  36. 
Thus,  where  the  deed  of  a  married 
woman  is  not  executed  in  conformity 
with  the  law  in  force  at  the  date  of 
its  execution,  so  as  to  convey  her 
estate,  it  will  not  become  effective  as 
an  ancient  deed,  from  lapse  of  time. 
Boyle  V.  Chambers,  32  ilo.  46.  An- 
cient   records,  when    accompanied  by 


Sec.  87.] 


Hearsay — Ancient  Possessions. 


285 


But  proof  of  possession  under  the  deed/  even  for  a  short  time, 
i;vill  be  sufficient.  Thus,  where  possession  for  five  years  was 
proved,  it  was  held  that  the  deed,  being  more  than  thirty  years  old, 
was  admissible  in  evidence  as  an  ancient  deed.^  So,  where  the 
grantee  entered  upon  the  land  believed  to  have  been  conveyed,  im- 
mediately after  the  date  of  a  deed  more  than  thirty  years  old, 
though  he  only  then  occupied  it  for  a  short  time,  and  that  the 
grantor,  twenty  years  after  the  date,  acknowledged  that  he  exe- 
cuted it  at  its  date,  it  was  held  sufficient  evidence  of  its  antiquity. ^'^ 
But  the  fact  that  there  has  been  no  possession  under  the  instru- 
ment will  not  defeat  the  admissibility  of  the  instrument,  if  its 
authenticity  is  otherwise  established,  or  such  facts  are  shown  as 
raise  a  fair  presumption  of  its  genuineness.^^  So  the  authenticity 
of  an  ancient  instrument  may  be  established  by  proving  the  hand- 
writing of  one  of  the  attesting  witnesses/^  or  by  showing  that  the 


an  admission  that  they  come  from 
the  proper  depository,  are  admissible 
in  evidence  without  further  proof  of 
their  authenticity.  A  copy  of  an 
ancient  proprietary  charter,  duly 
recorded  and  certified  in  the  book  of 
records  of  the  proprietary,  is  admis- 
sible in  evidence.  Little  v.  Down- 
ing, 37  N.  H.  355.  If  an  instrument 
offered  in  evidence  as  an  ancient  deed 
be  proved  to  be  thirty  years  old,  it 
is  not  necessary  to  show  that  it  came 
from  the  proper  custody,  and  that 
possession  has  been  had  imder  it; 
and  if  such  an  instrument  be  ad- 
mitted as  an  ancient  deed,  it  is  ad- 
mitted as  being  formally  executed  by 
signing,  sealing  and  delivering. 
Brown  v.  Wood,  G  Rich.  (S.  C.)  Eq. 
155.  Where  a  party,  without  objec- 
tion, produces  upon  trial  a  portion  of 
an  ancient  plan,  the  other  party  is 
entitled  to  put  in  the  whole  of  it,  as 
well  as  of  the  record  and  the  deeds 
of  those  under  whom  he  claimed, 
made  after  the  partition,  and  refer- 
ring to  it.  Floyd  v.  Tewksburv,  129 
Mass.  362. 

"Wager  v.  Acton,  1  Rice  (S.  C), 
100;   Namlin  v.  Burwell,  75  Va.  551. 

^"  Nixon  V.  Porter,  34  Miss.  697. 

"Hinde  v.  Vattier,  1  McLean  (U. 
S.),  110;  White  v.  Hutcumgs,  40 
Ala.  253;  Carroll  v.  Norwood,  1  H. 
&  J.   (Md.)    167. 


Thus  a  lease  more  than  thirty 
years  old  was  allowed  to  be  read  in 
evidence  as  an  ancient  deed,  without 
proof  of  its  execution,  although  there 
was  no  direct  proof  of  possession  ac- 
companying it,  it  being  found  among 
the  title  papers  of  the  estate  af- 
fected by  it.  and  the  facts  and  cir- 
cumstances in  reference  to  the  prop- 
erty specified  in  it  being  such  as  to 
afford  a  reasonable  ground  to  pre- 
sume its  genuineness.  Hewlett  v. 
Cock,  7  Wend.  (N.  Y.)  371;  Butrick, 
Pet'r,  185  Mass.  107,  69  N.  E.  1045. 
In  another  case,  Clark  v.  Owens,  18 
N.  Y.  434,  a  lease  which  was  offered 
in  evidence  as  an  ancient  deed,  cor- 
responded with  one  admitted  by  the 
pleadings  to  have  been  executed 
thirty  years  before,  except  that  it 
was  executed  by  A.  only,  while  the 
one  admitted  was  by  A.  and  B.  It 
was  proved  that  the  defendant  had 
for  four  years  paid  rent  at  the  time 
appointed  in  the  lease;  that  the  lease 
had  twice  been  shown  to  him  by  the 
landlord's  agent,  when  he  had  in- 
quired as  to  its  terms.  It  was  held 
that  the  lease  was  admissible  in  evi- 
dence without  further  proof  of  its 
authenticity. 

"  Carroll  v.  Norwood,  1  H.  &  J. 
(Md.)   167. 


286  Evidence.  [Chap.  7 

instrument  has  been  preserved  under  such  circumstances  as  render 
it  apparently  authentic.^^  Thus  an  ancient  book,  kept  among  the 
records  of  a  town,  purporting  to  be  the  "  selectmen's  book  of  ac- 
counts with  the  treasury  of  the  town,''  is  admissible  in  evidence  of 
the  facts  therein  stated ;  and  where  the  selectmen  were  at  the  same 
time  assessors,  an  entry  in  such  book  of  a  credit,  by  an  order  in 
favor  of  tlie  collector  for  a  discount  of  a  particular  individual's 
taxes,  was  held  to  be  evidence  of  an  abatement  of  the  tax  of  such 
individual." 

Old  maps,  stating  boundaries  made  by  persons  having  knowl- 
edge of  the  facts,  are  admissible  as  to  the  true  location  of  the  juris- 
dictional limits  of  a  municipal  corporation;^^  and  ancient  deeds 
and  plans  are  admissible  to  prove  the  location  of  a  creek  or  arm 
of  the  sea,  filled  up  since  the  deeds  were  executed  and  the  plans 
were  made.^®  On  questions  as  to  the  territorial  limits  of  a 
municipal  jurisdiction,  either  public  reputation  or  the  declarations 
of  deceased  persons,  made  ante  litem  motam,  are  admissible. ^^ 

The  rule  of  evidence  for  ancient  documents  is,  that  they  must 
have  the  appearance  of  due  antiquity  and  genuineness,  and  must 
he  procured  from  the  proper  custody  and  he  corrohorated  hy  such 
acts  of  the  parties  claiming  under  them,  as  correspond  with  their 
tenor}^  The  genuineness  of  these  documents  may  generally  he 
shown  prima  facie  hy  proof  that  they  came  from  the  proper  cus- 
tody; and  as  to  what  is  the  proper  custody,  must  depend  upon  the 
circumstances  of  each  case. 

"  Hinde  v.  Vattier,  ante;    King  v.  styling    themselves     selectmen,    were 

Little.  1  Cush.    (Mass.)    436.  proved  to  be   genuine.     The  warrant 

"  Boston    V.    Weymouth,    4    Cush,  -was  posted  up,  the  meeting  was  held, 

(Mass.)    538.  and  the  record  showed  that  an  officer 

So,  in  a  New  Hampshire  case,  Pe-  was  elected  and  sworn.  The  clerk 
terboro  v.  Lancaster,  14  N.  H.  382,  in  for  the  year  1805  was  dead.  It  was 
order  to  show  that  a  certain  town  held  that  from  these  facts,  after  the 
meeting  was  held  thirty-eight  years  lapse  of  thirty-eight  years,  the  jury- 
ago,  a  copy  of  an  original  warrant  might  presume  that  the  meeting  waa 
for  a  town  meeting  in  the  year   1805  duly  held. 

was  produced,  on  which  there  was  a  ^'''  McC'all  v.  United  States,    1   Dak. 

seal.        The    town    clerk,    who    found  320. 

the  original  among  the  papers  in  his  '"'  Drury  v.  Midland  R.  R.  Co.,   127 

office,  could  not  state  that  there  was  Mass.  571. 

a  seal  on  it  when  he  found  it,  but  he  ''  McCall   v.  United  States,    1   Dak. 

had  recently  lent  it  to  the  selectmen,  320. 

and    when    they    returned    it   to    him  ^^  Law  v.  Mumma,  43  Penn.  St.  267.^ 

there  was  a  seal  on  it.       The  record  "Documents,"   said   Tixdal,   C.   J.,. 

diu  not  show  that  it  was  sealed.    Two  in    Bishop    of    Meath    v.    Marquis    of 

of    the    signatures    to    it,    of    persons  Winchester,  3   Bing.  X.  C.  200;    Wil- 


Sec.  87.] 


Hearsay — Ancient  Possessions. 


28T 


The  question  in  all  such  eases  is  not  necessarily  whether  it  was 
found  in  the  place. wher^  it  would  be  most  likely  to  have  been 
found,  but  iclietlier  its  actual  place  of  custody  was  one  where  it 


Jiams      V.      Conger,      49'     Tex.      582, 
'•  found    in    a    place    in    ivhich,    and 
under  the  care  of  persons  unth  ivhom, 
such     papers     might     naturally     and 
reasonably   be  expected   to   be  found, 
are   precisely    in    the   custody    which 
gives      authenticity      to      documents 
found  within  it,  for   it  is  not  neces- 
sary that  thej'  should  be  found  in  the 
best    and    most    proper    place    of    de- 
posit.    If      documents      continue      in 
such    custody,   there    would   never    be 
any    question     as    to     their    authen- 
ticity;  but  it  is  when  documents  are 
found    in    other    than    their    proper 
place  of  deposit,  that   the   investiga- 
tion commences  whether  it   was   rea- 
sonable   and   natviral,   under    the    cir- 
cumstances in  the  particular  case,  to 
expect  that  they  should  have  been  in 
the   place    where    they    are    actually 
found ;     for  it  is  obvious  that,  while 
there  can  be  only  one  place  of  deposit 
strictly  and  absolutely   proper,  there 
may   be   many   and   various    that   are 
reasonable  and   probable,  though  dif- 
fering in  degree,  some  more  so,  some 
less ;   and  in  those  cases  the  proposi- 
tion to  be  determined  is,  whether  the 
actual   custody  is  so   reasonably   and 
probably   to  be  accounted  for  that   it 
impresses  the   mitid  with   the  convic- 
tion   that    the    instrument    found    in 
such  custody  must  be  genuine.     That 
such  is  the  character  and  description 
of    the    custody   which    is    held    suffi- 
ciently genuine  to  render  a  document 
admissible,  'appears     from     all      the 
cases."        Clark    v.    Courtney,   5    Pet. 
(U.  S.)  319;   Barr  v.  Gratz,  4  Wheat. 
(U.   S.)    213;   Winn   v.   Patterson,    9 
Pet.    (U.   S.)    663;   Duncan  v.   Beard, 
2  Nott  &  McC.   (S.  C.)   400;   Wewlett 
V.  Cook,  7  Wend.   (N.  Y.)   371;  Jack- 
son V.  Luguere,  5  Cow.   (N".  Y. )    221; 
Jackson  v.  Laraway,  3  John.  Cas.   (N. 
Y.)   283.     In  BrowTi  v.  Wood,  6  Rich. 
(S.  D.)    Eq.   155,  it  was  held  that  if 
a   deed  offered   in  evidence   is   proved 
to  be  over  thirty  years  old,  it  is  not 
necessary  to  prove  that  it  came  from 
the  proper  custody.     But  this  is  not 
.the  general  rule.     Jackson  v.  Miller, 


6  Cow.  (N.  Y.)  751.  Thus,  in  an 
early  New  York  case,  Jackson  v.  Mil- 
ler, ante,  a  book,  purporting  to 
contain  the  proceedings  of  the  com- 
missioners of  forfeitures,  but  not 
proved  to  have  ever  been  in  their 
possession,  though  found  in  the 
clerk's  office  in  1806,  and  having  lain 
there  seventeen  years,  is  not  admis- 
sible to  show  a  sale  by  the  commis- 
sioners; and  if  shown  to  be  genuine, 
it   would   not  be   evidence   of   title. 

In  a  Massachusetts  case.  Rust  v. 
Boston  Mill  Corporation,  6  Pick. 
(Mass.)  158,  in  a  writ  of  entry,  upon 
the  question  whether  the  grantees  of 
a  cove,  under  whom  the  tenants  de- 
rived their  title,  had  ever  claimed  or 
taken  possession  of  certain  flats,  the 
tenants  were  permitted  to  give  in  evi- 
dence an  ancient  deed,  under  which 
possession  had  been  taken  and  con- 
tinued to  the  present  time,  from  such 
grantees  to  a  third  person,  of  a  part 
of  the  flats;  and  an  ancient  record 
book,  which,  although  not  regularly 
authenticated,  had  been  preserved 
among  the  records  of  the  town,  was 
held  (there  being  nothing  to  impeach 
its  veracity)  competent  and  sufficient 
evidence  to  establish  the  ancient 
titles  under  the  allotments  from  the 
town.  In  the  ease  of  deeds,  grants, 
etc.,  their  cust-ody  would  naturally 
be  with  the  grantee  or  those  claim- 
ing under  him,  and  when  so  found, 
they  are  admissible.  Bullen  v.  Michel, 
2  Price,  413  ;  Bishop  of  Meach  v.  Mar- 
quis of  Winchester,  3  Bing.  N.  C.  201. 
Where  lands  of  individuals  are 
bounded  on  town  lines,  ancient  maps 
of  towns  made  by  authority  of  the 
State,  and  perambulations  of  town 
lines  are  competent  evidence  in  suit* 
between  such  individuals ;  and  the 
records  of  a  town,  purporting  to  be 
made  in  1728,  and  coming  from  the 
proper  depository  of  such  records, 
not  attested  by  any  clerk,  and  not 
accompanied  by  any  notice  of  the 
town  meeting,  were  held  competent 
evidence  to  be  submitted  to  a  jury. 
Adams  v.  Stanyan,  24  N.  H.  405. 


•288 


Evidence. 


[Chap.  7 


might  reasonably  he  expected  to  he  found j^^  and  the  circumstance 
that  an  old  lease  is  found  in  the  possession  of  .the  lessor,^"  or  a  trust 
deed  is  found  in  the  possession  of  the  grantor,^^  or  that  an  old  will 
is  found  in  the  possession  of  one  of  the  beneficiaries,  when  it 
should  have  been  deposited  in  the  Ecclesiastical  Court,^"  has  been 
held  not  sufficient  to  strip  it  of  its  value  as  evidence,  as  an  ancient 
instrument.  Mr.  Phillips,  in  his  work  on  Evidence,^^  insists  that 
in  order  to  render  ancient  documents  admissible,  proof,  if  possible, 
must  be  given  of  some  act  done  with  reference  to  them.  But  this 
does  not  seem  to  be  the  rule,  "  for,"  says  Mr.  Taylor,^^  "  although 


"TiNDAL,  C.  J.,  in  Bishop  of 
Meath  v.  Marquis  of  Winchester,  3 
Bing.  N.  C.  201 ;  Jones  v.  Waller,  2 
Gwill.  346;  Doe  v.  Pearce.  2  M.  & 
Rob.  240;  Rees  v.  Walters,  3  M.  & 
W.  527;  Doe  v.  Samples,  8  Ad.  &  El. 
151;  Trimlestown  v.  Kenns.  9  CI.  & 
F.  774;  Bertis  v.  Beaumont,  2  Price, 
307. 

^''Reea  v.  Walters.  3  :\I.  &  W.  527. 
"  Doe  V.  Samples,  8  Ad.  &  El.  151. 
"  Doe  V.  Pearce,  2  M.  &  Rob.  240. 
"Phillips  on  Ev.  270. 
"Taylor  on  Ev.  435. 
Thus,  in  Rogers  v.  Allen,  1  Camp. 
309,  311,  where,  in  order  to  prove  a 
prescriptive  right  of  fishery  as  ap- 
purtenant to  a  manor,  ancient 
licenses  to  fish  in  the  locus  in  quo, 
which  appeared  on  the  court  rolls, 
and  were  granted  by  former  lords  in 
consideration  of  certain  rents,  were 
tendered  in  evidence.  Mr.  Justice 
Heath,  after  argument,  held  that 
they  were  admissible'  without  any 
proof  of  the  rents  having  been  paid; 
but  he  added  that,  '"  to  give  them  any 
iceight,  it  must  be  shown  that  in  lat- 
ter times  payments  had  been  made 
under  licenses  of  the  same  kind,  or 
that  the  lords  of  the  manor  had  ex- 
€rcised  other  acts  of  ownership  over 
the  fishery,  which  had  been  acqui- 
esced in."  So,  in  the  case  of  the 
Duke  of  Bedford  v.  Lopes,  cited  in. 
argument,  3  Q.  B.  623,  which  was  an 
action  brought  to  try  the  title  to  the 
bed  of  a  river,  after  proof  of  a  grant 
from  Henry  VIII,  two  counterparts 
of  leases  were  produced  from  the 
Duke's  muniment  room,  comprehend- 
in-g  the   soil  in  question.       No  pay- 


ment  by   a    tenant   was    proved,    nor 
any  modern  act  of  ownership;      but 
Lord    Denmax    admitted   the    instiTi- 
ments  as  coming  from  the  right  cus- 
tody,   observing    that    there    was    no 
circumstance  in  the  case  which  threw 
suspicion  upon   them,  and  that   "  the 
absence  of  other  kinds  of  proof  was 
mere  matter  of  observation."     Doe  v. 
Pullman,    3    Q.    B.    622.    620.        See 
further,  on  this  subject,  Clarkson   v. 
Woodhouse,  5  T.  R.  413,  n.,  per  Lord 
Maxsfield;      Brett     v.     Beales,     M. 
&  ]M.  418;  per  Lord  Texterdex;  Doe 
V.    Passingham,   2   C.    &    P.    444,   per 
BuRROUGH,  J.;  Rancliffe  v.   Parkyns, 
0   Dow.  202,   per  Lord  Eldox;      Mc- 
Kenire    v.    Eraser,    9    Ves.    5.       And 
such  also  is  the  rule  in  this  country. 
Jackson    v.    Larowav,   3    Johns.    Cas. 
(X.   Y.)    283,    287;'   Jackson  v.   Lu- 
quere,    5    Cow.     (X.    Y.)     221,    225; 
Jackson  v.  I^amb,  7  id.  431;   Barr  v. 
Gratz,   4   Wheat.     (U.   S.)    213,   221; 
Hewlett   V.   Cock,    7    Wend.    (X.    Y.) 
371,   373,   374.     Again,   in   an  action 
in  ejectment  brought   by  Lord  Egre- 
raont,    it    became    necessary   to    show 
that   the    land    in   question   had   been 
part  of  the  estate  of  the  lessor's  an- 
cestor.   Sir    William    Wyndham;   and 
in  order  to  establish  this  fact,  there 
was    produced    from    the    muniment 
room  of  the  property  which  had  de- 
scended  from  Sir  William,  what  ap- 
peared to  be  a  counterpart  of  a  lease 
of   this   land,    made    by    him ;    but    it 
purported  to  be  executed  only  by  tlie 
lessee,  and  there  was  no   proof  given 
of  actual   possession   under  it.       The 
Court    of    Queen's    Bench,    after    con- 
sulting    with     some     of     the     other 


Sec.  88.]  Hearsay — Ancient  Possessions.  289 

it  is  perfectly  true  that  the  mere  production  of  an  ancient  docu- 
ment, unless  supported  by  some  corroborative  evidence  of  acting 
under  it,  or  of  modern  possession,  would  be  entitled  to  little,  if 
any,  weight,  still  there  appears  to  be  no  strict  rule  of  law  which 
would  authorize  the  judge  in  withdrawing  the  deed  altogether 
from  the  consideration  of  the  jury: — in  other  words,  the  absence 
of  proof  of  possession  affects  merely  the  weight,  and  not  the  ad- 
mdssihility,  of  the  instrument." 

Under  the  qualifications  stated,  ancie^it  documents,  purporting 
to  he  a  part  of  the  transactions  to  mhich  they  relute,  and  not  a 
mere  na/trative  of  them,  are  receivable  as  evideyice  that  those 
transactions  actually  occurred.  And  tliough  they  are  spoken  of 
as  hearsay  evidence  of  ancient  possession,  and  as  Such  are  said  to 
be  admitted  in  exception  to  the  general  rule,  yet  they  seem  rather 
to  be  parts  of  the  res  gestae,  and  therefore  admissible  as  original 
evidence,  on  the  principle  already  discussed.  An  ancient  deed, 
by  which  is  meant  one  more  than  thirty  years  old,  having  nothing 
suspicious  about  it,  is  presumed  to  be  genuine  without  express 
proof,  the  witnesses  being  presumed  dead;  and,  if  it  be  found 
in  the  proper  custody,  and  be  corroborated  by  evidence  of  ancient 
or  modern  corresponding  enjoyment,  or  by  other  equivalent  or 
explanatory  proof,  it  will  be  presumed  to  have  constituted  part 
of  the  actual  transfer  of  property  therein  mentioned,  because 
this  is  the  usual  course  of  such  transactions.  The  residue  of  the 
transaction  may  be  as  uneri-ingly  inferred,  from  the  existence  of 
genuine  ancient  documents,  as  the  remainder  of  a  statue  may 
be  made  out  from  an  existing  torso,  or  a  perfect  skeleton  from 
the  fossil  remains  of  a  part.^° 

Sec.  88.  Hearsay  not  Admissible  to  Prove  Private  Title. 

The  objection  to  receiving  hearsay  testimony  upon  matters  of 
private  right,  applies  with  great  force  to  those  cases  which  are 
unsupported  by  any  analogy  to  matters  of  public  or  general  in- 
terest; as  where  the  fact  sought  to  be  proved  is  not  matter  of 
prescription  or  of  boundary.     Thus,  in  an  ejectment,^  where  the 

judges,  held   that  this  deed  was   ad-  *  Didsbury    v.    Thomas,     14    East, 

missible  in  evidence.  323. 

"Taylor  on  Ev.  §  463. 
19 


290 


Evidence. 


[Chap.  T 


lessor  of  the  plaintiff  claimed  the  land  as  tenant  in  tail  under  a 
will,  by  which  the  testator  gave  his  son  an  estate  for  life,  and  the 
defendant  claimed  as  devisee  of  the  son,  the  question  was,  whether 
the  land  in  dispute  Avas  part  of  the  entailed  estate,  or  had  been 
purchased  by  the  son.  Evidence  of  reputation  that  the  land  had 
belonged  to  Sir  J.  S.,  and  had  been  purchased  of  him  by  the 
father,  the  first  testator,  was  held  to  be  clearly  inadmissible.  So 
evidence  of  reputation  has  been  rejected  upon  a  question  as  to 
■the  usage  in  electing  a  schoolmaster,  as  it  related  to  a  private 
right,^  and  upon  a  question  whether  the  tenants  of  a  particular 
copyhold  estate  had  the  right  of  cutting  and  selling  wood,^  or 
whether  the  lord  of  a  manor  had  a  prescriptive  right  to  all  wreck 
within  the  boundaries  of  the  nianor.^  In  The  King  v.  Antrobus,^ 
on  the  trial  of  an  information  against  a  sheriff  of  a  county,  for 
not  executing  a  convict  sentenced  to  death,  it  was  held  that  a 
witness  could  not  be  asked  whether  he  had  heard  that  it  was  the 


MYithnel  v.  Gartham.   1  Esp.  324. 

«  Blackett  v.  Lowes,  2  M.  &  S.  494, 
500. 

«Talbit  V.  LeAvis,  1  C,  M.  &  R. 
495. 

^2  Ad.  &  El.  749.  Hearsay  is  ad- 
missible in  the  case  of  a  custom.  Per 
Marshall,  C.  J.,  in  Mima  Queen  v. 
Hepburn,  7  Cranch.  29(>.  A  custom 
or  usage  is  a  fact  to  be  proved  by 
testimony,  by  persons  who  are  ac- 
quainted' with  the  locality  or  busi- 
ness to  which  it  relates.  Putnam  v. 
Tillotson.  13  Met.  517;  Cope  v. 
Dodd,  13  Penn.  St.  33.  A  present 
custom  of  business  manifestly  must 
be  proved  by  persons  engaged  in  or 
acquainted  with  the  business.  Iso- 
lated instances  will  not  establish  it, 
Cope  V.  Dodd,  supra:  there  must  be 
a  general  concurrence  of  action. 
Knowles  v.  Dow,  2  Foster  (X.  H.), 
387.  The  mode  of  provng  its  exist- 
ence, and  the  number  of  witnesses 
necessary  to  be  called,  must  depend 
upon  the  circumstances  of  the  case, 
Vail  &  Adams  v.  Rice,  5  N.  Y.  151, 
and  upon  the  object  for  which  it  is 
sought  to  be  proved. 

It  has  been  said  that  in  the  case  of 
the  Bishop  of  Meath  v.  Lord  Belfield, 
B.  N.  P.  295,  cited  by  Buller,  J.,  in 
R.  V.  Eriswell,  3  T.  R.  719;  S.  C, 
reported  1  Wils.  215,  in  a  quare  im- 


pedit  after  the  plaintiff  had  given  in 
evidence  an  entry  in  the  register  of 
the  diocese  of  the  institution  of  one 
K.  ( in  which  entry  ■  there  was  a 
blank  where  the  patron's  name  was 
usually  inserted),  parol  evidence  of 
the  general  reputation  of  the  coun- 
try was  offered,  that  K.  was  in  by 
the  presentation  of  one  under  whom 
the  defendant  claimed ;  and,  on  a  bill 
of  exceptions,  the  evidence  was  ad- 
judged to  be  admissible,  on  the 
ground  that  a  presentation  may  be 
by  parol,  and  that  what  commences 
by  parol  may  be  transmitted  to  pos- 
terity by  parol ;  and  that  this  cre- 
ates a  general  reputation.  But  Lord 
Kenyon,  C.  J.,  adverting  to  this  case 
in  R.  V.  Eriswell,  3  T.  R.  723  (see, 
also,  Tellard  v.  Shebbeare,  2  Wils. 
66 ) ,  said  he  admitted  that  a  presenta- 
tion might  be  by  parol,  and  might  be 
proved  by  parol — that  is,  by  a  wit- 
ness who  was  present  and  heard  it; 
but  he  denied  that  in  such  a  case 
common  reputation  coulu  be  given  in 
evidence.  "  If  it  can,"  he  added, 
"  why  might  not  such  evidence  decide 
titles  to  estates,  at  least  before  the 
Statute  of  Frauds,  when  no  written 
instrument  was  required  to  make  a 
good  feoffment  of  the  greatest  landed^ 
property   in   the  kingdom?" 


Sec.  88.]  Hearsay — Ancie::^t  Possessions.  291 

custom  for  the  sheriff  to  be  exempt  from  performing,  or  for  an- 
other person  to  perform  the  duty  in  that  particuhir  county,  al- 
though it  had  been  proved  that  such  other  officer  had  in  fact  al- 
ways performed  it  within  living  memory.  It  was  said  that  this 
was  not  a  matter  of  public  interest,  the  public  not  being  inter- 
ested in  the  question  which  officer  was  to  perform  the  duty. 

There  appears  to  be  a  conflict  of  authority  upon  the  question 
whether  evidence  of  reputation  is  admissible  as  to  the  liability 
of  the  occupiers  of  certain  land  to  repair  a  road,  ratione  tenurae. 
In  The  King  v.  Cotton,^  it  seems  to  have  been  assitmed  that  such 
evidence  was  admissible,  although  the  particular  evidence  tendered 
was  rejected  upon  another  ground.  But  in  the  later  case  of  The 
King  V.  Wavertree,^  similar  evidence  was  rejected.  It  was  ten- 
dered on  behalf  of  the  defendants,  but,  as  the  verdict  was  returned 
in  their  favor,  there  w^as  no  opportunity  of  carrying  the  question 
any  further.  While  such  evidence  would  establish  a  private  lia- 
bility, it  would,  at  the  same  time,  disprove  the  liability  of  the 
public.  It  is  not,  therefore,  a  question  of  private  liability  per  se, 
in  which  the  public  are  not  interested.  And,  as  reputation  is  ad- 
missible equally  to  disprove  a  public  right  as  to  establish  one,^  so 
it  would  seem  such  evidence  should  be  admissible  to  disprove  a 
public  liability  in  the  same  manner  as  to  establish  it.  And  there 
seems  to  be  no  good  reason  why  reputation  should  not  be  as  good 
evidence  to  establish  a  liability  to  repair  a  road,  ratione  tenurae, 
as  it  is  in  the  case  of  a  bridge  or  a  sea-wall.^ 

Hearsay  is,  in  general,  inadmissible  to  prove  particular  facts, 
unless  such  facts  have  become  matter  of  general  reputation.  Thus, 
on  a  question  of  parochial  modus,  hearsay  evidence  that  a  particu- 
lar person,  since  deceased,  paid  a  certain  sum  in  lieu  of  tithes, 
would  not  be  admissible ;  but  if  the  witness  s'ays  he  has  heard  from 
old  inhabitants  that  so  much  per  acre  was  always  paid  in  lieu  of 
tithes,  or  that  it  had  always  been  the  custom  to  make  such  pay- 
ments, that  will  be  good  evidence,  for  it  does  not  consist  of  hear- 
say of  a  particular  fact,  but  comes  within  the  general  rule  of  evi- 
dence of  reputation.^''     MacDonald^  C.  B.,  said  in  one  case:" 

"3   Camp.   444.  1C9;      Moselev   v.    Davies.    11    Price, 

^2  Mo.  &  R.  353.  162:   Garnons'  v.    Bernard,    1    Anstr. 

.  •  'See   Drinkwater  v.   Pater,   7   C.  &  298:      Deacle   v.    Hancock,    13    Price, 

P.  181.  220:   Wells  v.  Jesus   College,  Oxford, 

'  See    R.    V.    Sutton,    8    Ad.    &    El.  7  C.  &  P.  284. 

516:  R.  V.  Leigh.  10  Ad.  &  El.  398.  "In  Harwood  v.  Sims,  ante. 

'"Harwood  v.  Sims,  1  Wightw.  112, 


292  Evidence.  [Chap.  7 

"  The  essence  of  reputation  is,  that  if  voii  prove  a  fact — as,  for 
instance,  payment  of  a  sum  of  money — it  must  be  accompanied 
with  this,  that  it  was  so  paid  in  consequence  of  a  reputation.  If 
evidence  is  confined  to  the  fact  of  payment,  it  is  inadmissible, 
unless  the  tradition  that  came  with  it  was  a  reputation  that  it 
had  always  been  the  case." 

But  though  hearsay  of  a  custom  to  make  certain  payments  is 
evidence,  hearsay  that  certain  lands  were  formerly  given  to  the 
vicar  in  lieu  of  tithes  is  not  admissible,^^  this  being  evidence  of  a 
particular  fact,  and  being  confined  to  a  partcular  occasion.  Again, 
though  reputation  is  good  evidence  of  the  boundaries  of  a  town, 
it  is  not  admissible  to  prove  that  houses  once  stood  where  there 
are  now  none.^^ 

Upon  a  question  whether  a  part  of  Lincoln's  Inn  was  part  of 
the  parish  of  St.  Andrew,  Holborn,  an  ancient  book  of  antiquities, 
relating  to  the  parish  and  collected  by  a  churchwarden,  was  pro- 
duced, and  several  entries  were  tendered  in  evidence  concerning 
the  repairs  of  pews  and  the  glazing  of  windows.  Abbott,  C.  J., 
refused  to  receive  this  as  evidence  of  reputation,  as  it  related  only 
to  particular  facts.^*  But  entries  in  an  old  parish  book,  in  which  the 
names  of  the  surveyors  of  the  highways  were  stated,  have  been 
admitted,  upon  the  principle  that  it  would  be  difficult  to  give 
other  proof  of  persons  being  sun^eyors  at  the  time  in  question. ^^ 

^\Tiere  the  question  is,  whether  a  road  is  public  or  private,  the 
declaration  of  a  deceased  person  as  to  a  certain  fact  having  been 
done  (as  the  planting  of  a  tree)  for  the  purpose  of  showing  the 
boundary  of  the  road,  has  been  held  not  admissible  as  evidence 
of  reputation,  or  as  a  statement  accompanying  an  act.^^  It  might 
have  been  shown  that  a  tree  was  planted  on  the  spot,  and  that 
persons  were  accustomed  to  keep  within  the  line  pointed  out  by 
it;  but  a  declaration  that  it  was  planted  with  a  particular  motive 

"Chatfleld  v.  Fryer,    1   Price.  253.  '=  R.    v.    Pembridge    (Inliab.y,   Car. 

And   see  Leathes  v.   Newel,   4   Price,      &  M.  157. 

355;      8  Price,  562 ;      Crease  v.  Bar-  '"  R.  v.  Bliss,  7  Ad.  &  El.  550.     In 

rett,  1  C,  M.  &  R.  919.  this  country  the  declarations  of  a  de- 

^'  Ireland  v.  Powell,  Peake  Ev.  14,  ceased  person  have  been  frequently 
cited  in  Chatfield  v.  Fryer,  1  Price,  admitted,  on  questions  of  boundary 
256 ;  and  in  R.  v.  Bliss,  7  Ad.  &  El.  involving  private  rights,  where  the 
555.  witness    appeared    to    have    had    the 

"  Cooke  V.  Banks,  2  C.  &  P.  478.  means  of  knowledge,  and  no  interest 

in   making   them.     Smith   v.    Powers, 
15  N.  H.  546.     See  next  section. 


Sees.  89,  90.]       Hearsay — Ancient  Possessions.  293 

and  object  is  not  evidence,"  and  declarations  by  deceased  persons 
that  they  had  seen  repairs  done  upon  the  road  will  not  be  ad- 
missible upon  such  a  question.-^^ 

Sec.  89.  Perambulations. 

Perambulations,  although  they  consist  of  particular  acts  done 
(as  the  making  of  an  ambit,  digging  turves,  putting  down  posts, 
etc.),  and  though  they  give  rise  to  much  hearsay  evidence,  are, 
properly  speaking,  only  the  exercise  of  a  right,  and  it  is  held  to  be 
usual  and  entirely  consistent  with  principle  to  admit  what  old 
persons  since  deceased,  who  accompanied  the  perambulations, 
were  heard  to  say  on  such  occasions  respecting  the  boundaries. 
But  there  does  not  appear  to  be  any  authority  for  admitting  hear- 
say of  particular  acts  done,  as  conducive  to  the  proof  of  boundaiy, 
even  though  it  is  delivered  on  the  occasion  of  a  perambulation. 
In  Weeks  v.  Sparks,^  Lord  Eelenboe.ough,  C.  J.,  observed,  upon 
the  subject  of  perambulations,  that  they  are  in  the  nature  of  hear- 
say evidence,  not  of  particular  acts  done  (as  that  such  a  turf  was 
dug,  or  such  a  post  put  down  in  a  particular  spot, — for  that  would 
amount  to  evidence  of  ownership),  but  evidence  of  the  ambit  or 
survey  of  a  particular  place  or  parish,  and  of  what  the  persons 
accompanying  the  survey  have  been  heard  to  say  and  seen,  to  do  on 
such  occasions.  Le  Blanc,  J.,  observed,  in  the  same  case,  that 
the  evidence  of  perambulations  might  be  considered  in  a  certain 
degree  as  evidence  of  the  exercise  of  a  right,  yet  that  it  had  been 
usual  to  go  further,  and  admit  the  evidence  of  what  old  persons, 
since  deceased,  had  been  heard  to  say  on  those  occasioha  Entries 
in  parish  books,  recording  the  fact  that  perambulations  had  taken 
a  particular  line,  have  been  held  inadmissible.^ 

Sec.  90.  Old  Documents. 

Reputation  respecting  public  rights  may  be  shown  by  old  deeds 
or  other  old  documents,  even  though  of  a  private  nature,  as  well 
as  by  the  oral  declarations  of  deceased  individuals.^ 

"  R.  V.  Bliss,  7  Ad.  &  El.  550.  ^  This   subject  will    receive   further 

'i^L'^t'^^^^'  '^■'  ''^-  ^^--  illustration  in  that  part  of  the  work 

1  M.  &  S.  687,  689.  which     treats     of     documentary    evi- 

'  Taylor  v.  Devey,  7  Ad.  &  El.  409.  dence. 
See  next  section. 


29-i 


Evidence. 


[Chap.  7 


A  deed  recorded  over  fifty  years  is  an  ancient  deed  admissible 
without  proof  of  due  execution,"  and  recitals  in  such  an  ancient 
deed  may  be  proof  as  against  persons  who  are  not  parties  to  it  and 
-vvho  do  not  claim  under  it.^  The  rule  admitting  in  evidence  ancient 
documents  without  proof  of  execution  is  but  a  rule  of  evidence 
based  upon  the  presumed  death  of  the  parties  and  witnesses.  It 
cannot  apply  to  an  instrument  which  on  its  very  face  carries  no 
presumption  of  ever  having  been  executed  as  required  by  law.  So 
an  instrument  signed  by  a  mark  without  either  witnesses  or  ac- 
knowledgnnent  as  required  by  statute  is  not  admissible  although 
niorethanSO  yearsold.*  But  in  Illinois  it  has  been-  held  that  a  certi- 
fied copy  of  a  deed  which  has  been  on  record  more  than  30  years  is 
admissible  although  not  acknowledged  as  required  by  the  law  in 
force  when  executed.'^  A  copy  of  a  record  of  what  purpoted  to 
be  a  lost  patent  certificate  is  insufficient  where  the  original  was 
unsealed'  and  so  not  entitled  to  record  and  no  witness  has  ever 
seen  it.  Such  a  document  does  not  prove  itself,  though  the  orig- 
inal was  claimed  to  be  given  over  thirty  years  ago.^ 


Thus,  where  the  question  was, 
whetlier  certain  land  was  in  the 
parish  of  A.,  or  in  that  of  B.,  where 
the  land  was  tithe-free,  ancient 
leases  granted  by  the  ancestors  of  the 
plaintiff's  landlord,  describing  the 
lands  as  being  in  the  parish  of  B., 
Avere  held  admissible  as  evidence  of 
reputation,  notwithstanding  that 
such  ancestor  had  a  direct  interest  in 
describing  the  land  to  be  situated  in 
that  parish.  Plaxton  v.  Dare,  10  B. 
&  C.  17.  See,  also,  Arundell  v.  Fal- 
mouth, 2  M.  &  S.  443;  Freeman  v. 
rhillipps,  4  M.  &  S.  486;  Coombs  v. 
Coethier,  1  M.  &  M.  398;  Barnes  v. 
Mawson,  1  M.  &  S.  78;  Anglesea  v. 
Hatherton,  10  M.  &  W.  218;  Bullen 
V.  Michel,  4  Dow.  297  ;  Clarkson  v. 
Woodhouse,  5  T.  R.  412,  n.;  S.  C,  3 
Doug.  189.  In  the  ease  of  Cambridge 
Tolls,  Brett  v.  Beales,  1  M.  &  M.,  416; 
see,  also,  Curzon  v.  Lomax,  5  Esp. 
60,  a  composition  deed  between  the 
corporation  of  Cambridge  and  the 
university,  regulating  the  amount  of 
payment  of  tolls,  was  received  as  evi- 
dence of  reputation  of  the  existence 
of  the  tolls.  It  appeared  that  the 
deed    had    not   been   exactly   followed 


in  practice;  but  it  was  held  that  this 
objection  did  not  apply  to  its  ad- 
missibility. So  depositions  in  ancient 
suits  have  frequently  been  produced 
to  prove  reputation.  Freeman  v. 
Phillipps,  4  M.  &  S.  493.  And  see 
the  cases  of  the  Settle  and  Leeds 
Mills,  cited  bv  Lord  Ellenborough, 
C.  J.,  id. 

=  Stalford  v.  Goldring,  197  111.  156, 
64  N.  E.  R.  395.  An  ancient  deed 
found  in  the  possession  of  an  heir  of 
one  of  the  grantees  is  admissible 
without  formal  proof  of  execution, 
especially  where  the  records  from  tiie 
probate  court  show  that  the  posses- 
sion and  claim  of  title  of  the  parties 
to  it  was  for  a  long  time  in  conform- 
ity with  it.  Butrick,  Pet.  185  Mass. 
107,  69  N.  E.   1045. 

'  Young  V.  Shulenburg,  165  N.  Y. 
385,  59  N.  E.  135,  80  Am.  St.  Rep. 
730. 

^  O'Neal  V.  Tennessee  Coal,  Iron  & 
R.  Co.,  140  Ala.  378,  37  So.  275. 

'Bradley  v.  Lightcap,  201  III.  511, 
66  N.  E.  R.  546. 

°  Arbuckle  v.  Matthews,  73  Ark.  27, 
83  S.  W.  320. 


Sees.  91,  92.]     Hearsay — xIncient  Possessions.  295 

Sec.  91.  Manorial  Documents. 

A  customary  of  a  manor  delivered  down  with  the  court  rolls 
from  steward  to  steward,  and  purporting  to  be  ex  assensu  omnium 
tenentiuni;  although  not  signed  by  any  person,  has  been  held  to  be 
good  evidence  to  prove  the  course  of  descent  within  a  manor. ^  So 
the  presentment  of  a  custom  of  a  manor  by  the  homage,  entered  on 
the  rolls  of  the  manor,  is  receivable.^  So  ancient  answers  of  con- 
ventionary  tenants  of  a  manor,  stating  the  rights  of  the  lord  of 
the  manor,  and  made  to  interrogatories  put  to  them  by  commis- 
sioners, but  which  interrogatories  Avere  lost,  have  been  received  in 
evidence.^  A  presentment  in  a  manor  court,  setting  forth  the 
boundaries  of  a  manor,  has  been  adjudged  to  be  admissible  evi- 
dence of  boundary,  although  a  part  of  the  document,  but  not  con- 
nected with  the  subject  of  the  particular  boundary,  appeared  to 
have  been  cut  off.^ 

In  an  action  by  a  copyholder  against  a  freeholder  of  the  manor, 
for  the  disturbance  of  the  plaintiff's  right  of  common,^  by  reason 
of  the  defendant  surcharging  the  common  (the  plaintiff  setting  up 
&  restricted  right),  parchment  writings  produced  on  the  part  of 
the  defendant  from  among  the  muniments  of  the  manor,  purport- 
ing to  be  signed  by  many  persons,  copyholders,  and  stating  an  un- 
limited right  of  common  in  the  commoners  (which  had  been  found 
inconvenient,  and  they  had  therefore  agreed  to  stock  it  in  a*  re- 
stricted manner),  were  held  admissible  as  evidence  of  reputation 
respecting  the  general  right  at  that  period,  and  in  disproof  that 
the  restricted  right  originated  in  prescription ;  there  being  no 
evidence  that  the  plaintiff's  tenement  had  belonged  to  any  of  those 
-who  had  signed  the  writings,  so  as  to  -render  them  admissible 
against  him  on  that  ground. 

Sec.  92.  Maps. 

Maps,  stating  the  boundaries  of  manor  or  parishes,  are  held 
even  in  England  to  be  admissible  in  evidence  to  prove  such  bound- 

'  Denn  v.  Spray,  1  T.  R.  466.  923.     See  Evans  v.  Taylor,  7  Ad.  & 

^'Roe  V.   Parker,  5  T.  R.  26.       See  El.  617. 

Lord    Kenton's    remarks    as    to    the  *  Evans  v.  Rees,  10  Ad.  &  EI.   1.51. 

-credit  due  to  such  presentments.  See,  See,  also,  R.  v.  Leigh,   10  Ad.  &   EI. 

also,  Arundell   v.   Falmouth,  2   M.  &  .S98,  400,  404,  411. 

*S.  441.  'Chapman  v.  Cowlan,  13  East,  10. 

« Crease  v.  Barrett,  1  C,  M.  &  R. 


296  Evidence.  [Cliap.  T 

aries,  p-ovided  it  appears  that  they  had  been  made  by  persons  hav- 
ing adequate  knowledge.  In  the  English  case,  however,  where 
maps  have  been  admitted,  their  admissibility  has  depended  on  the 
ground  of  their  being  public  documents,  or  of  their  being  in  the 
nature  of  admissions.  Where  they  relate  merely  to  the  boundaries 
of  private  property,  there  is  no  ground  for  receiving  them,  how- 
ever ancient/  In  a  case  where  a  parish  had  been  indicted  for  the 
non-repair  of  a  highway,  in  order  to  show  that  the  highway  was 
not  within  the  parish,  a  map  was  produced  which  had  been  made, 
about  thirty  years  before,  by  a  surveyor  from  information  derived 
from  an  old  parishioner,  who  had  pointed  out  the  boundaries  to 
him;  and  Eeskine^  J.,  held  that  if  proof  were  given  of  the  in- 
formant's death,  the  map  would  be  admissible  as  evidence  of  rep- 
utation, although  it  was  produced  from  the  chest  of  the  parish  that 
was  indicted. 

In  an  earlier  case,^  upon  a  question  of  highway.  Lord  Kenyon, 
C.  J.,  rejected  the  evidence  of  a  copperplate  map  purporting  to 
have  been  made  by  the  direction  of  former  church-wardens.  But 
it  is  difficult  to  see  how  there  could  be  any  valid  objection  to  the  re- 
ception of  such  evidence. 

In  this  country  old  maps  made  by  public  authority,  shown  to 
be  correct,  or  the  authenticity  of  which  is  admitted  or  acted  upon, 
are  admissible,^  especially  when  made  by  an  official  surveyor  and 
verified  by  the  oath  of  the  surveyor  ;■*  and  this  is  the  rule  when  they 
relate  to  private  rights.  Thus  a  recorded  deed  dated  1806,  and 
map  attached  thereto  are  admissible  as  ancient  to  aid  in  showing 
public  rights  in  a  certain  street.^  In  an  action  to  recover  for  build- 
ing done  under  a  special  contract,  requiring  the  plaintiff  to  con- 
form to  specific  plans,  other  plans,  as  well  as  maps  and  drawings, 
exhibiting  the  various  parts  of  the  building  and  premises  on  whick 
the  work  was  to  be  done,  are  admissible  in  evidence  as  introduc- 
tory to  testimony;  and  a  question  to  a  witness  w^hether  such  a 

*With  respect  to  private  maps,  see  St.    Paul,   12  Minn.   192;  Jackson  v. 

Doe  d.  Hughes  v.  Lakin,  7   C.  &   P.  Vandyke,    1    N.    J.    L.     (Coxe)     28; 

481;   Sir  J.  Bridgman  v.  Jennings,   1  Jackson    v.    Frost,    5    Cow.     (N.    Y.) 

Ld.  Raym.  734;     Donnison  v.  Elsley,  346;   Burnett  v.   Thompson,    13   Ired. 

2  Eagle  &  Y.  1396,  n.  (N.  C.)   L.  379. 

=  Pollard  V.  Smith,  Peake,  18.  *  Gates  v.  KieflF.  7  Cal.  124;  Smith 

'Johnston    v.    Jones.    1    Black     (U.  v.    Strong,     14    Pick.     (Mass.)     128; 

S.),    209;      Stein   v.    Ashby,    24   Ala.  Surgett  v.  Doe,  24  Miss.  118. 

521;      Thrall   v.   Smiley,  9   Cal.   529;  ^Village  of  Oxford   v.   Willoughby» 

Dunn  V.  Hays,  21  Me.' 76;   Wilder  v.  181  N.  Y.  155,  73  N.  E.  677. 


Sec' 93.]  Hearsay — Ancient  Possessions.  297 

plan  is  correct,  though  leading,  is  still  proper,  as  mere  induce- 
ment.® So,  in  a  suit  between  the  owners  of  adjoining  land,  to 
establish  the  dividing  line,  both  parties  deriving  their  title  from 
the  same  grantor,  a  map  annexed  to  the  deed  of  the  premises  to 
said  grantor,  and  referred  to  in  the  deed,  is  sufficiently  authenti- 
cated quoad  the  parties  to  the  suit,  and  is  admissible  evidence.'' 
Copies  of  old  maps  and  plans  of  Philadelphia,  in  the  office  of  the 
surveyor-general,  and  certified  by  him,  and  the  list  of  first  pur- 
chasers, with  the  advertisement  annexed,  and  historical  books  gen- 
erally, received  as  authentic,  are  admissible  in  evidence  of  remote 
transactions.^  So  maps  and  ancient  surveys,  as  well  as  reputation, 
are  evidence  to  elucidate  and  ascertain  a  boundary,  but  not  to 
impeach  official  grants  on  public  record,  where  control  has  been 
long  exercised  in  conformity  to  the  grants.®  In  the  trial  of  ac- 
tions involving  the  title  to  lands,  plans  of  the  premises  may  be 
shown  to  the  jury,  and  taken  by  them  to  the  jury-room,  if  proved 
to  be  correct  so  far  as  they  go,  although  they  may  not  make  a  fair 
representation  of  the  case-^'' 

Sec.  93.  Verdicts,  etc. 

On  questions  of  immemorial  customary  rights,  and  on  questions 
of  public  or  general  interest,  verdicts,  judgments  and  decrees  in 
suits  in  which  the  same  right  was  in  litigation,  are  admissible  in 
evidence,  although  the  suits  were  between  other  parties.^ 

In  the  case  of  Reed  v.  Jackson,^  where,  in  an  action  of  trespass, 
issue  was  joined  on  a  plea  of  public  right  of  way,  the  plaintiff  was 
allowed  to  give  in  evidence  a  verdict  found  in  his  favor  against  a 
different  defendant,  upon  an  issue  joined  as  to  the  existence  of  the 
same  right  of  way,  Lawrence,  J.,  saying:  "Reputation  would 
have  been  evidence  of  the  right  of  way  in  question;  a  fortiori 
■  the  finding  of  twelve  men  upon  their  oaths."  It  has  been  estab- 
lished by  a  long  course  of  authorities^  that  verdicts  as  well  as  judg- 
ments and  decrees  are  admissible  as  evidence  of  reputation.     If 

"Stuart   V.    Binsse,    10   Bosw.    (N.  '"  Wood  v.  Willard,  36  Vt.  82. 

Y. )    436.  '  See    Brune   v.   Thompson,    Car.    &. 

'Crawford  v.  Loeper,  25  Barb.    (N.  M.  34. 

Y. )   449.  '  1   East,  536. 

'  Con'iinonwealth     v.     Alburger,      1  'See     Lord     Denman,     C.     J.,     in 

Whart.    (Pa.)    469.  Evans  v.  Rees,  10  Ad.  &  El.  156. 

'  Penny    Pot    Landing   v.    Philadel- 
phia, 16'Penn.  St.  79. 


298  EviDExcE.  [Chap.  7 

not  amounting  to  reputation  itself,  they  are  as  good  evidence  as 
reputation^  And  in  all  cases  involving  a  general  rights  where 
reputation  is  evidence,  a  verdict  or  a  judgment — although  between 
other  parties — is  evidence,  not,  indeed,  of  any  specific  fact  existing 
at  the  time  J  but  as  evidence  of  the  most  solemn  kind  of  an  ad- 
judication of  a  competent  tribunal  upon  the  state  of  facts,  and 
the  question  of  usage,  at  that  time.^ 

In  an  early  case,^  where  the  qiiestion  discussed  was  concerning 
the  right  of  the  city  of  London  to  take  certain  tolls  upon  malt 
brought  to  London  by  west-country  barges,  it  was  held  that  ver- 
dicts against  certain  owners  of  barges  were  admissible  in  evidence 
against  other  owners  who  were  neither  parties  nor  privies  to  the 
former  records.  Similar  evidence  has  been  received  upon  a  ques- 
tion respecting  the  right  of  electing  church-wardens.^  And  it 
does  not  affect  the  admissihility  of  such  evidence,  although  it  may 
diminish  its  weight,  that  a  judgment  has  been  suffered  by  default, 
and  does  not  appear,  though  of  recent  date,  to  have  been  followed 
up  by  execution  or  the  payment  of  damages,  or  even  that  the  ver- 
dict has  not  been  followed  up  by  a  judgment  or  decree.^  Thus,  in 
the  case  of  Brisco  v.  Lomax,^  on  a  question  as  to  the  boundary  be- 
tween the  manors  of  A,  and  B.,  the  finding  of  a  jury  under  an 
ancient  commission  from  the  Duchy  Court  of  Lancaster,  for  the 
purpose  of  determining  the  boundary  between  the  manors  of  B. 
and  C,  on  a  petition  of  the  owners  of  the  two  last-mentioned 
manors,  representing  that  the  boundary  was  uncertain,  and  that 
suits  were  likely  to  arise  between  them,  was  adjudged  to  be  admis- 
sible evidence ;  it  appearing  that  the  three  manors  of  A.,  B.  and 
C.  were  so  situated  with  reference  to  each  other  that  the  ascer- 
taining of  the  boundaries  between  B.  and  C.  would  throw  light 
upon  the  boundaries  between  A.  and  B.,  although  the  verdict  of 
the  jury  did  not  appear  to  have  been  followed  up  by  a  decree  or 
judgment.  "  For,"  as  Coleeidge,  J.,  said,  "  on  a  question  of 
manorial  boundary  between  two  owners,  reputation  is  admissible ; 

*By   LiTTLEDALE,   J.,   in   Brisco  v.  v.   Woodhouse,   5   T.    R.    412;  Travis 

lomax,  8  Ad.  &  El.  211.  v.   Clialoner.  2   Eag.   &  Y. :   Biddulph 

"Bv  Lord   Abinger,  C.   B.,  in  Pirn  v.  Ather,  2  Wils.  23. 
T.  Ciirell,  6  M.  &  W.  266.  ''Berry  v.   Banner.  Peake  N.   P.   C. 

'City  of  London  v.   Gierke,   Carth.  157. 
181.     See,   also.   Cost   v.    Birkbeck.    1  'Carnarvon    (Earl  of)    v.  Villebois, 

Doug.    218;      the    case    of    the   Man-  13  M.  &  W.  313.  329,  332. 
Chester  Mills,   1  Doug.  221,  n. ;   Som-  »8  Ad.  &  El.  198. 

€rset  V.  France,  1  Str.  659;  Clarkson 


Sec.  94.]  Hearsay— Ancient  Possessions.  299 

.and  verdicts  are  evidence,  where  reputation  is  admissible,  between 
third  parties.  The  necessity  of  a  decree  or  judgment  to  render 
the  verdict  admissible  exists  only  where  it  is  sought  to  bind  the 
parties  conclusively  by  the  finding;  but  here  the  verdict  is  not 
offered  as  conclusive  evidence,  hut  as  evidence  in  the  yiature  of 
reputation." 

Sec.  94.  Judgments,  Decrees  and  Orders. 

In  an  action  by  the  lord    of  a  manor  against  a  copyholder  for 
trespassing  on  his  free  warren,'  a  judgment  on  a  quo  warranto 
brought  against  a  former  owner  of  the  manor,  wherein  the  then 
defendant  pleaded,    and   the   attorney-general  confessed,    a   pre- 
scriptive title  to  the  franchise  of  free  warren  as  appurtenant  to 
the  manor,  has  been  held  to  be  evidence  for  the  plaintiff  in  support 
of  the  right  of  free  warren  by  prescription,  as  being  the  judgment 
of  a  competent  court  upon  a  matter  of  a  public  nature,  which  con- 
cerned the  crown  and  the  subject.     So,  on  the  trial  of  an  issue 
whether  the  deputy  oyster-masters  of  the  city  of  London  have  an- 
immemorial  customary  right,  as  claimed  by  them,'  a  decree  of  the 
Court  of  Exchequer,  relative  to  the  matter  in  issue,  was  held  to  be 
admissible  in  evidence,  upon  the  same  footing  as  a  verdict  is  ad- 
missible on  a  question  of  custom.     If  the  decree  has  a  tendency 
to  prove  any  fact  material  to  the  issue,  it  is  admissible.     So  decrees 
and  orders  of  other  competent  tribunals  are  admissible  as  evidence 
of  reputation.     Thus,  orders  of  commissioners  of  sewers,  requir- 
ing landowners  to  repair  sea-walls,  are  evidence  upon  an  issue  as 
to  the  liability  of  a  party  to  make  such  repairs ;  and  if  they  are  of 
ancient  date,  it  will  be  presumed  that  they  have  been  duly  acted 
upon.^     But  a  decree  or  order,  to  be  admissible,  must  be  final; 
mere  interlocutory  orders  will  not  be  evidence.     Thus,  in  the  case 
of  Pirn  V.  Curell  and  others,'^  in  an  action  for  the  infringement  of 
a  right  of  ferry,  ancient  proceedings  in  the  Court  of  Chancery  of 
the  duchy  of  Lancaster,  containing  orders  made  by  the  court  in  the 
matter  of  an  information  relating  to  the  ferry,  were  offered  in 
■evidence  on  the  part  of  the  plaintiff,  and  received  at  the  trial;  but 

>  Carnarvon    (Earl  of)  v.  Villebois,  I  ?•  J"  „^Jf^,\^  f^.  ^  ^^-  ^^^• 

13  M.  &  W.  313,  331.  *6  M.  &  W.  234,  266. 

^Lavbourne   v.    Crisp,  4   M.   &   W. 
320,  327. 


300  Evidence.  [Chap.  7 

the  Court  of  Exchequer  adjudged  the  order  to  be  inadmissible, 
inasmuch  as  it  was  a  mere  interlocutory  order,  and  did  not  involve 
any  judgment  upon  the  facts  or  on  the  rights  of  the  parties.  But 
this  rule  as  to  the  admissibility  of  verdicts  and  other  judicial  doc- 
uments as  evidence  of  reputation  does  not  extend  to  awards,  even 
in  cases  where  the  cause  has  been  referred  by  an  order  of  a  judge 
at  Nisi  Prius,  as  the  authority  of  an  arbitrator  is  entirely  derived 
from  the  consent  of  the  parties  to  the  reference,  and  the  award  is 
but  the  opinion  of  the  arbitrator,  formed  upon  the  result  of  evi- 
dence laid  before  him,  generally  in  private.^  Xor  will  a  verdict 
or  other  judicial  document  be  receivable,  unless  it  appear  that  the 
tribunal  was  acting  under  legal  authority.  Thus,  upon  a  question 
respecting  the  jurisdiction  of  the  Court  of  Sessions  of  the  county 
of  Chester,^  an  order  and  decree  upon  the  subject  by  the  Lord 
High  Treasurer  and  certain  other  public  functionaries  of  the 
kingdom  (not  forming  any  court  known  to  the  laws)  was  held  in- 
admissible as  evidence  of  reputation,  because,  as  was  said  by  Lord 
Tenterden,  C.  J.,  declarations  are  only  evidence  of  reputation 
when  made  by  those  who  have  a  personal  knowledge  of  the  fact; 
whereas,  in  the  case  in  question,  the  persons,  acting  as  judges  had 
no  knowledge  of  the  fact,  except  what  was  derived  ii^  the  course 
of  the  proceeding. 

Sec.  95.  Grounds  upon  which  these  Rules  are  Founded. 

The  gTOunds  for  receiving  evidence  of  reputation  upon  matters 
of  public  and  general  interest  is,  that  the  statements  should  have 
been  made  by  persons  likely  to  possess  a  competent  knowledge  of 
the  facts  to  which  their  statements  relate.  It  has  sometimes  been 
thought  that  this  qualification  must  necessarily  be  satisfied  where 
the  matter  is  of  public  interest,  becaiuse,  as  Lord  Kenyon,  C.  J., 
in  one  case  observed,^  all  mankind  being  interested  therein,  it  is 
natural  to  suppose  that  they  may  be  conversant  with  the  subject, 
and  that  they  should  discourse  together  about  it,  having  all  the 
same  means  of  information.  And  Lord  Ellenborough,  C.  J., 
has  stated  it  to  be  the  general  understanding  upon  which  the  de- 
cisions of  the  courts  have  proceeded,  ''that  upon  questions  of  public 

"Evans  v.  Rees,   10  Ad.  &  El.  151,  'Rogers  v.  Wood,  2  B.  &  Ad.  245. 

155.      See,   also,   R.   Cotton,    3    Camp.  '  In    Morewood   v.    Wood,    14    East> 

444.  329,  n. 


Sec.  95.]  Hearsay — Ancient  Possessions.  301 

right  all  are  interested,  and  must  be  presumed  conversant  with 
them."^  But  in  a  later  case/  th«  court  observed  that  it  was  clear 
that  hearsay  evidence  upon  some  subjects  could  not  be  received, 
unless  iL'itli  a  qualification  that  it  came  from  persons  who  had  a 
special  interest  to  inquire;  that  in  cases  of  pedigree  the  line  was 
clearly  defined ;  and  that  in  cases  of  rights  or  customs  which  are 
not,  properly  speaking,  public,  but  of  a  general  nature,  and  concern 
a  multitude  of  persons,  as  questions  with  respect  to  boundaries 
and  customs  of  particular  districts,  though  the  rule  is  not  so 
clearly  laid  down,  it  seems  that  hearsay  evidence  is  not  admis- 
sible, unless  it  is  derived  from  persons  conversant  with  the  neigh- 
borhood. ^Mlere  the  right  is  really  public,  as  a  claim  of  highway, 
in  which  all  are  interested,  it  is  difficult  to  say  that  there  ought  to 
be  any  such  limitation,  and  none  seem  to  exist,  as  in  a  matter  in 
which  all  are  concerned,  reputation  from  any  one  is  receivable  ;  but 
of  course  it  would  be  almost  worthless,  unless  it  came  from  per- 
sons who  were  shown  to  have  some  means  of  knowledge,  as  by  liv- 
ing in  the  neighborhood,  or  frequently  using  the  road  in  dispute. 
In  the  case  last  cited,  which  related  to  a  custom  in  which  all  were 
not  interested,  but  only  such  as  chose  to  become  adventurers  in 
mines  within  a  certain  district,  it  was  said  that  hearsay  from, 
persons  ivholly  unconnected  with  the  place  in  which  the  mines  were 
found  would  be  of  no  value,  and  probably  altogether  inadmissible ; 
but  that  the  hearsay  of  persons  under  whose  estates  the  minerals 
lay,  with  respect  to  which  the  custom  existed,  was  admissible,  be- 
cause they  were  sufficiently  connected  with  the  subject,  although 
not  concerned  in  mining,  nor  receiving  the  dues  of  mines.  In 
Rogers  v.  Wood,*  a  document,  purporting  to  be  a  decree  of  certain 
public  functionaries,  who  had  no  authority  as  a  court,  was  held 
to  be  inadmissible  as  evidence  of  reputation  on  a  question  whether 
the  city  of  Chester,  before  it  was  made  a  county  of  itself,  formed 
a  part  of  the  county  palatine,  because  those  persons  from  their 
situations  had  no  peculiar  knowledge  of  the  fact.  In  another 
case^  Le  Blanc,  J.,  laid  great  stress  upon  the  circumstance  that 
the  evidence  of  reputation  in  that  case  proceeded  from  persons 
who  had  been  conversant  with  the  neighborhood  where  the  wHiste 

»In   Weeks   v.    Sparke,    1  M.   &   S.  *2  Bing.  86. 

686.  "Weeks  v.  Sparke,  1  M.  &  S.  688, 

*  Crease  v.  Barrett,  1  C,  M.  &  R.       689. 
927. 


302  Evidence.  [Chap.  7 

lay  in  which  their  statements  referred;  and  that  no  eviden'ce  was 
received,  except  from  prsons  connected  with  the  district  then  in? 
question.  But  actual  inhabitancy  in  the  place  of  which  the  boun- 
daries are  in  dispute  is  unnecessary.  Thus,  justices  of  the  peace, 
at  the  sessions  of  the  county  within  which  the  district  was  alleged 
to  be,  were  considered,  on  account  of  the  character  and  nature  of 
their  office,  Avithout  proof  of  their  being  residents,  to  have  suffi- 
cient connection  with  the  subjects  in  dispute  to  render  the  state- 
ments in  their  orders,  as  to  the  location  of  Kottingham  Castle^ 
admissible  evidence  of  reputation.^  So,  on  a  question  of  parochial 
or  manorial  boundary,  the  declarations  of  old  persons,  deceased, 
have  been  held  admissible,  although  they  were  parishioners,  and 
claimed  rights  of  common  on  the  wastes  which  their  declarations 
had  a  tendency  to  enlarge.''  So,  on  a  question  of  parochial  modus, 
it  was  held  that  the  declarations  of  deceased  parishioners  and  oc- 
cupiers of  lands  in  the  parish  who  were  liable  to  pay  tithe  were 
admissible.^  In  Crease  v.  Barrett,^  certain  answers  of  conven- 
tionary  tenants  were  objected  to  as  not  being  admissible  against 
the  freeholders  of  a  manor,  to  whom  it  was  said  they  had  an  ad- 
verse interest,  and  it  was  contended  that  all  the  cases  in  which  the 
hearsay  of  copyholders  had  been  received,  related  to  questions 
between  lord  and  copyholder,  or  copyholder  and  copyholder.  The 
answers,  however,  were  held  to  be  admissible  evidence. 

Sec.  96.  Position  of  Parties  Presumed  to  be  as  Stated  in  Ancient 

Documents. 
'  Where  proceedings  in  an  ancient  suit  are  produced  as  evidence 
of  reputation  upon  matters  of  public  or  general  interest,  it  may 
generally  be  presumed  that  the  parties  to  the  suit  and  the  witnesses 
were  actually  in  the  respective  capacities  which  they  purported  to 
have  been,  without  proving  this  by  evidence  dehors  the  proceedings 
themselves.^     Thus,  in  Freeman  v.  Phillips,^  an  action  by  a  copy- 

'New  Castle  v.  Broxtowe,   4  B.   &  'A     stricter    rule    has    been     laid 

Ad.  273.         '  down    in    some    pedigree    cases     (the 


Nicholls     V.      Parker,      14      East,  Banbury       and       Berkeley       Peerage 

331,  n.  Cases),  and  the  same  point  occurs  in 

'Harwood  v.  Sims,   1   Wightw.   12;  regard    to    declarations    against     in- 

Moseley    v.    Davies,     11    Price,     162,  terest.     Davis  v.   Morgan,   1   C.   &  J. 

180;     Deacle   v.    Hancock.    13    Price,  591 ;  Adamthwaite  v.  Synge,  1   Stark. 

226.     See  what  is   said   by   Graham,  R.    183.    189;     S.   C,  4    Camp.    372; 

B.,  in  13  Price,  236.  Slane  Peerage,  5  CI.  &  Fin.  23. 

»  1  C,  M.  &  R.  927.  '  4  M.  &  S.  495. 


Sec.  97.]  Hearsay — ^Vj^cient  Possessions.  30S 

holder  against  the  lord  of  a  manor,  in  which  the  defendant  gave 
in  evidence  the  proceedings  in  a  suit  in  equity  in  the  time  of  King 
William'  III,  brought  by  a  copyholder  of  the  same  manor  against 
the  then  lord',  it  was  held  that  no  evidence  aliunde  was  requisite  to 
make  the  proceedings  admissible.  Bailey,  J.,  said :  "  We  must 
assume  at  this  time  of  day  that  the  bill  was  not  a  mere  fabrication, 
but  was  really  filed  by  such  a  copyholder  against  the  lord,  and  that 
the  trial  was  had  and  the  deposition  made  between  such  parties  as 
were  really  litigating  their  rights  in  the  characters  claimed  and 
disclosed  on  the  record."  iind  with  respect  to  the  depositions  the 
same  judge  observed:  "  These  I  do  not  look  upon  merely  as  the 
declarations  of  persons  unconnected  with  the  subject,  but  as  the 
depositions  of  persons,  made  by  them  in  the  character  of  wit- 
nesses brought  forward  by  the  copyholder,  whose  interest  it  was  to 
put  foremost  such  witnesses  as  w-ere  best  able  to  depose  to  the  mat- 
ter in  dispute.  Why  am  I  to  assume  that  the  copyholder  brought 
forward  witnesses  who  were  ignorant  I  I  do  not  agree  that  it  was 
necessary  to  prove  the  witnesses  to  have  been  copyholders,  in  order 
to  let  in  their  testimony.  The  plaintiff's  witnesses  in  the  last 
trial  do  not  all  appear  to  be  copyholders,  yet,  as  they  were  present 
at  the  holding  of  courts,  and  therefore  knew  what  passed,  they 
were  competent  to  speak  to  that.  So  in  the  former  suit  I  cannot 
infer  that  they  were  incompetent  to  have  a  knowledge  of  the  facts 
they  deposed  to;  on  the  contrary,  it  is  to  be  presumed  they  had  a 
competent  knowledge,  being  brought  forward  as  witnesses  by  a 
copyholder."  Lord  Ellenboeough,  C.  J.,  in  the  same  case,  ob- 
served :  "  Considering  the  depositions  as  made  in  a  suit  which 
may  now  be  said  to  be  lost  in  remote  antiquity,  we  should  give  this 
record  but  very  little  eifect,  if  we  did  not  attribute  to  it  verity  in 
many  of  the  particular  matters  which  it  contains,  such  as,  that  the 
parties  litigant  were  clothed  with  the  rights  in  which  they  profess 
to  stand,  and  were  agitating  the  claim  put  forward  on  the  record." 

Sec.  97.  Proof  of  Modern  Exercise  of  Right. 

Another  cautionary  rule,  in  receiving  hearsay  evidence  in  mat- 
ters of  public  or  general  interest,  has  been  supposed  to  be,  at  least 
where  the  nature  of  the  case  admits  of  it,  that  a  foundation  for  it 
should  be  laid  by  proving  acts  of  modern  enjoyment.     Le  Blanc., 


304  EviDEXcE.  [Chap.  7 

J.,  in  speaking  of  the  manner  in  which  matters  of  this  nature  are 
to  be  proved,  says  •}    "  First  they  are  to  be  proved  by  acts  of  en- 
joyment within  the  period  of  living  memory ;  and  when  that  foun- 
dation is  laid,  then,  inasmuch  as  there  cannot  be  any  witnesses  to 
speak  to  acts  of  enjoyment  beyond  the  time  of  living  memory, 
evidence  is  to  be  admitted  from  old  persons  of  what  they  have 
heard  other  persons  of  the  same  neighborhood,  since  deceased,  say 
respecting  the  right."     Again:  "  After  a  foundation  is  once  laid 
for  the  right  by  proving  acts  of  ownership,  the  evidence  of  reputa- 
tion becomes  admissible."     And  Buller,  J.,  in  another  case  ob- 
served '}  "  Thus  far  I  agi-ee  with  Lord  Kenyox  and  Mr.  Justice 
AsHUEST,  that  in  no  case  ought  evidence  of  reputation  to  be  re- 
ceived, except  a  foundation  be  laid,  by  other  evidence,   of  the 
right."    But  this  does  not  now  seem  to  be  the  rule,  and  in  a  later 
case,^  in  answer  to  an  observation  that  all  evidence  of  reputation 
was  inadmissible,  unless  confirmed  by  proof  of  facts,  it  was  said 
that  such  proof  was  not  an  essential  condition  of  its  reception,  but 
that  it  was  only  material  as  affecting  the  value  of  the  evidence 
when  received}     Where  the  subject-matter  of  the  question  does 
not,  from  its  nature,  admit  of  acts  of  enjoyment,  proof  of  repu- 
tation, though  unaccompanied  by  evidence  of  acts  done,  is  admis- 
sible.    On  a  question  respecting  the  custom  of  descent  wdthin  a 
manor,  it  has  been  held  that  reputation  is  admissible,  without 
showing  any  instances  of  its  having  been  put  in  use  f  for  were  it 
otherwise,  if  no  instances  were  to  happen  within  the  memory  of 
man,  and  the  old  court  rolls  w^ere  to  be  lost,  the  custom  itself 
would  be  entirely  destroyed.^    And  in  one  case.  Lord  Texterdex, 
C.  J.,  intimated  an  opinion  that  the  existence  of  a  manor  might 
be  proved  by  reputation  alone,  without  evidence  of  the  exercise  of 
any  manorial  rights.''    It  is  not  necessary  that  statements  of  opin- 

*  In   Weeks  v.   Sparke,   1    M.   &   S.  *  There     was,     however,     sufficient 

688.  proof    of    enjoyment    given    in    that 

'In   Morewood  v.    Wood,    14   East,  case. 

330,   n.       And   see  Rateliflf   v.   Chap-  '  Beebee  v.  Parker,  5  T.  R.  26,  31; 

man,  4  Leon.   242,  commented  on   in  Foster  v.  Sisson,  12  East,  62. 

5  T.   R.   32.       In   White   v.   Lisle,  4  '  By  Grose,  J.,  5   T.  R.   32 ;      Roe 

Madd.    214,    the    vice-chancellor    said  v.    JeflFery,    2    M.    &    S.    92;    Doe    v. 

that  evidence  of  reputation  was  only  Mason,   3   Wis.  63. 

admitted    in    confirmation    of    actual  '2  Stark.  R.  466.     This  was  ruled 

enjoyment,  and  not  against  it.  also  by  Lord  Kexyox,  C.  J.,  in  Cur- 

'  Crease  v.  Barrett,  1   C,  M.  &  R.  zon  v.  Lomax,  5  Esp.  60. 
927. 


Sec.  9 7.  J  Heaesay — Ancient  Possessions. 


305 


ion  upon  any  subject  bj  deceased  persons  should  expressly  appear 
to  be  founded  upon  reputation  derived  from  others.  Thus,  on  an 
issue  whether  or  not  certain  land,  in  a  district  repairing  its  own 
roads,  was  a  common  highway,  it  has  been  held  to  be  admissible 
evidence  of  reputation  that  the  inliabitants  held  a  public  meeting 
to  consider  the  question  of  repairing  such  way,  and  that  several  of 
them,  since  dead,  signed  a  paper  on  that  occasion,  stating  that  the 
land  was  not  a  public  highway,  there  being  at  the  time  no  litigation 
on  the  subject.^ 

_  General  hearsay,  or,  in  other  words,  public  reputation,  is  some- 
times adduced  as  ancillary  evidence  in  laying  the  foundation  for 
presuming  a  public  corporate  grant.     Thus,  the  defendant  justified 
•  in  trespass  de  bonis,  etc,  as  collector,  the  taking  of  goods  for  par- 
ish taxes ;  and  the  Massachusetts  provincial  records  having  been 
burnt  by  two  several  fires,  and  no  charter  or  incorporation  bein*^ 
found  among  those  subsisting,  the  defendant  was  allowed  to  prove 
the  incorporation  of  the  parish  by  general  reputation.^     Another 
and  very  common  sort  of  hearsay  is  general  reputation  to  prove 
that  a  man  holds  a  public  office  or  employment.    This  is  usually  in- 
troduced in  connection  with  evidence  of  such  acts  as  the  ofiice  or 
employment  imputed  presupposes  his  right  or  duty  to  perform. 
The  extent  to  which  this  doctrine  has  been  applied  will  be  par- 
tially seen  by  consulting  our  prior  and  subsequent  notes,  with  the 
text  to  which  they  refer.     We  there  spoke  of  it,  with  reference  to 
the  degree  of  evidence,  as  primary  or  secondarv.     We  shall  here 
add  some  further  instances,  which,  while  thev  will  tend  to  enlarge 
the  illustration  under  that  head,  are  intended  more  particularly 
to  test  the  application  and  force  of  hearsay  evidence.     In  Porter 
T.  Luther,^^  the  court  held  that  public  reputation  was  admissible 
to  prove  the  defendant  a  deputy  sheriff,  which  was  part  of  his  plea 
of  justification  ;  and  they  say :  "  It  is  a  general  rule  to  admit  proof 
by  reputation  that  a  person  acts  as  a  general  public  officer  or  dep- 
uty."    In  pursuance  of  this  rule,  it  was  received,  in  connection 
ivith  the  defendant's  acts,  to  show  that  he  was  overseer  of  a  certain 
road  district ;"  to  show  that  persons  claiming  to  be  collectors  of 
school  districts  were  in  fact  such;^-  that  a  military  officer  acting 

^  ^Barraclough    v.    Johnson.    8    Ad.      ^ "  Dean   v.   Gridley,    10    Wend.    (N. 

-?STk\mT.','^  ^^''-  ^^^-       .^^^^S  ''■  ^^^°^t'   "  '^^^^"d.    (N.  Y.) 
3  John.   (A.  1.)   431.  341;   McCoy  v.  Curtice,  9  id.  17. 


306 


Evidence. 


[Chap,  r 


as  president  of  a  court  martial  was  in  fact  president  f  that  a  per- 
son is  a  constable,"  county  commissioner/^  a  justice  of  the  peace/* 
a  collector/'  or  indeed  to  show  that  any  person  claiming  to  hold  a 
certain  office  acted  as  such,  and  discharged  the  functions  of  the 
office. 


"State  V.  Gregory,  2  Murph.  (N. 
C.)    69. 

"Adams  v.  Jackson,  2  Aik.  (Vt.) 
145. 


"  Kevser  v.  MoKisson,  2  Rawle 
(Penn.*).  139. 

■nVilcox  V.  Smith,  5  Wend.  (N. 
Y.)    23. 

"  Eldred  v.  Sexton,  5  Ohio,  215. 


CHAPTER  VIII. 

Hearsay  to  Establish  Private  Boundaries. 

Section     98.  Admissible,  when. 

99.  Declarations  of  deceased  surveyors. 

100.  Of  persons  shown  to  have  been  in  a  situation  to  know. 

101.  When  hearsay  is  not  admissible. 

102.  Declarations  of  owners  against  interest. 

Sec.  98.  Admissible,  when. 

In  this  countrj,  the  declarations  of  deceased  persons,  who  are 
shown  to  have  been  in  a  position  to  know  the  facts,  are  admissible 
to  establish  the  boundaries  of  lands  owned  by  private  persons.^ 

This  species  of  traditionary  evidence  has,  as  we  have  seen,  al- 
Avays  been  admitted,  both  in  this  country  and  in  England,  to  prove 
facts  of  a  public  or  general  nature,   and  in  this  country  most 
of  our  courts  have  extended  the  rule,  and  admitted  this  species 
of  evidence  to  prove  the  boundaries  of  lands  between  individuals ;  , 
and  the  extension  of  the  rule  in  this  respect  is  justified  by  the 
same  necessity  which  justifies  the  original  rule.     In  Connecticiit,^ 
Mdiere  the  question  in  an  action  of  ejectment  was,  whether  a  high- 
way reserved  in  1676  was  laid  out  over  certain  meadow  land,  as  the 
defendant  claimed,  or  over  the  upland,  as  the  plaintiff  claimed, 
the  plaintiff,  in  support  of  his  claim,  offered  as  witnesses  several 
aged  men,  who  testified  that  when  young  they  heard  old  men, 
since  dead,  say  that  there  was  a  traveled  road  for  highway  over  the 
upland,   and  the  court  held  that  this  evidence  was  admissible.* 
But  a  traditionary  or  general  reputation  as  to  the  possession  of  land 
cannot  arise  in  five  years."     In  IvTorth  Carolina,^  i-n  a  case  where 

'Boardman  v.  Reed,  6  Pet.   (U.  S.)  Blard  v.  Talbot,  Cooke   (Tcnn.),  142; 

328;   Elhcott  v.  Pearl,  1  McLean   (U.  McCloud  v.  Mynatt.  2  Coldw  (Tenn  ) 

S.),     206;       Wooster     v.     Butler.     13  163;    Wood  v.  Willard,  27  Vt.  377.' 
Conn.  309;   Howell   v.  Tilden,   1   Har.  nVooster  v.   Butler,   13   Conn.   309 

&   M.    (Md.)    84;   Redding  v.   McCub-  ^Higley   v.    Bidwell,   9    Conn.   447; 

bin,   id.  368:   St.  Louis  v.   Risley,  40  1     Swift's    Digest,     766;      Porter    v. 

Mo.    356;   Adams   v.    Stangan,   24   N,  Warner,   2   Root     (Conn.),  22. 
H.   405;   Dibble  v.  Rogers,   13   Wend.  *  Westfeldt    v.    Aaams,    135    N     C. 

(N.    Y.)    536;      Nieman    v.    Ward,    1  591,  42  S.  E.  823. 
Watts   &   S.    (Penn.)    68;      Spear   v.  '  Whitehurst    v.     Petiphur,    87    N 

Coate,     3     McCord      (S.     C),     228;  C.  l79. 

(307) 


308 


Evidence. 


[Chap.  8 


it  became  necessary  to  show  the  location  of  the  beginning  corner, 
under  the  calls  of  the  defendant's  deed,  the  defendant  proposed 
to  show,  by  his  own  evidence,  where  such  corner  was,  by  the  dec- 
larations of  one  Gaskins,  who  pointed  out  the  corner  to  him,  and 
who,  at  the  time  when  the  declarations  were  made,  was  a  slave 
belonging  to  a  person  who  was  then  in  the  possession  of  an  ad- 
joining tract  of  land  as  owmer,  both  of  wdiom,  at  the  time  of  the 
trial,  were  dead.  The  testimony  was  rejected,  but  upon  appeal 
the  Supreme  Court  held  that  the  evidence  was  clearly  admissible.^ 
A  similar  doctrine  is  held  in  Vermont,^  New  Hampshire,^  Mary- 
land,^ Pennsylvania,^*^  Tennessee,^^  South  Carolina,"^  New  York,^^ 
Massachusetts"  and  Texas.^^  But  this  class  of  evidence  is  only  I 
admissible  where  the  person  making  the  declaration  is  shown  to  \ 
he  dead}^  and  is  shown  to  have  had  actual  hnoivledge  of  the  lines   '' 


°  See.  also,  to  the  same  effect,  Har- 
ris V.  Parnell.  1  HayAV.  (N.  C.)  349; 
Caldwell  v.  Neelev,  81  N.  C.  114; 
Gervin  v.  Meredith!!  2  Car.  L.  R.  439; 
Dobson  V.  Finley,  8  Jones  (N.  C), 
495. 

'Wood  V.  Willard.  37  Vt.  377; 
Evarts  v.  Young,  52  id.  329;  Put- 
nam V.  Fisher,  52  id.  191;  Powers  v. 
Silsbv.  41  id.  288. 

« Smith  V.  Powers,  15  N.  H.  546; 
Wendell  v.  Abbott,  45  N.  H.  349; 
Adams  v.  Stannard,  24  id.   405. 

"Hall  V.  Gittings.  2  H.  &  J.  (Md.) 
112;  Medley  v.  Williams,  7  G.  &  J. 
(Md.)   61. 

'"Bender  v.  Pitzer,  27  Penn.  St. 
333. 

"McCloud  V.  Mynott,  2  Caldw. 
(Tenn.)    163. 

'=  Shear  v.  Coate,  3  McCord  (S. 
C),  228. 

"Dibble  v.  Rogers,  13  Wend.  (N. 
Y.)   536. 

"  Bartlett  v.  Emerson,  7  Gray 
(Mass.),  174;  Long  v.  Cotton,  116 
Mass.  414. 

'=  Coleman  v.  Smith,  55  Tex.  254. 

"Wood  V.  Willard,  37  Vt.  372. 
See,  also,  the  cases  previously  cited 
in  this  section.  Blythe  v.  Suther- 
land, 3  MeCord  (S.  C),  258;  Long 
V.  Pellett,  1  H.  &  McH.  (Md.)  53. 
And  the  fact  that  their  whereabouts 
is  unknown,  or  that  they  are  out  of 
thte  State,  is  not  sufficient.  Buchanan 
V.   Moore,    10   S.   &  R.    (Penn.)    275; 


Gervin  v.  Meredith.  2  N.  C.  L.  R. 
634.  But  there  is  a  distinction  in 
this  respect  between  proving  general 
reinitation  and  particular  declara- 
tions. In  the  former  case,  proof  of 
the  death  of  the  person  from  whom 
the  information  was  derived  need 
not  be  proved,  but  in  the  latter  it 
must  be  proved.  In  Smith  v.  Xow- 
ells,  2  Litt.  (Ky.)  159,  this  distinc- 
tion was  illustrated  by  a  matter  re- 
lating to  boundaries.  In  that  case 
tlie  plaintiff  brought  ejectment,  and 
it  appeared  that  the  plaintiff  and 
the  defendant  claimed  under  interfer- 
ing grants  from  the  same  source — 
the  plaintiff's  being  the  oldest.  The 
defendant  read  in  evidence  a  patent 
of  land  to  one  B.,  older  than  that 
under  which  the  plaintiff  claimed; 
and  to  show  that  it  covered  a  part 
of  the  land  in  controversy,  asked  a 
witness  whether  certain  lines  were, 
before  the  commencement  of  the  act- 
ion, generally  reputed  in  the'  neigh- 
borhood to  be  the  lines  of  B.'s  sur- 
vey. This  was  objected  to,  but  ad- 
mitted, and  the  court  held  that  it 
was  properly'  admitted,  the  court 
saying:  "What  any  one,  even  a  per- 
son who  had  been  present  at  the  mak- 
ing of  the  survey,  had  been  heard  to 
say,  would  no  doubt  be  inadmissible, 
unless  the  death  of  such  person  was 
first  proved;  hut  there  is  a  difference 
between  hearsay  of  particvular  and 
general  reputation.     From  the  nature 


Se<>.  98.]  To  Establish  Private  Boundaeies. 


309 


or  boundaries  in  question}'  and  stood  in  such  a  relation  to  the 
propertij  as  to  have  no  interest  to  misrepresent  the  fact,^^  and  in 
many  of  the  States  that  the  declaration  must  have  been  made  upon 
the  ground,''  and,  in  Massachusetts,   that  they  must  have  been 
made     by    persons    in    the    possession    of    adjoining    land    as 
owners.       But  in  New  Hampshire^^  it  is  held  that  the  declarant 
need  not  have  been  npon  the  ground  at  the  time  when  the  declara- 
tions were  made;  and  in  North  Carolina^^  that  he  need  not  even 
have  been  m  view  of  the  premises.    As  to  evidence  of  the  general 
reputation  as  to  the  location  of  a  divisional  line,  such  evidence  has 
been  uniformly  received,  and  the  restriction  put  upon  it  seems 
to  be  that  the  reputation,  whether  by  parol  or  otherwise,  should 
have  its  origin  at  a  time  comparatively  remote,  and  alwavs  ante 
litem  motam;  second  that  it  should  attach  itself  to  some  monument 
of  boundary  or  natural  object,  or  be  fortified  or  supported  by  evi- 
dence of  occupation  and  acquiescence  tending  to  give  the  land  in 
question    some,    fixed    or    definite    location.^^     lu    most    of    the 
States  it  is  not  necessary  that  the  declarant  should  ever  have  been 
m  possession  of  the  land  as  owner  or  otherwise,  but  simply  that 
he  should  be  shown  to  have  been  in  such  a  situation  in  reference 
thereto  as  to  have  actual  knowledge  of  the  factsr'  In  a  question  of 
disputed  boundary  the  minutes  of  the  proceedings  of  the  town  of- 
ficials laying  out  a  certain  street  are  competent  and  may  be  proved 
either  by  the  original  or  by  a  copy  properly  certified.'^ 

of   the   thing    an   old    boundary    can-       Forrest,   49    N    H    >^30  •    O.-Pnf    T7.,ii« 
not    :n    general    be    proved   by '  direct       Co.  v.  Worster',   15  Td    h?  "' 

i7Tv„„^    „    Txr.,,      ,         ,        ^  hearsay  evidence  consisting  in  the  de- 

V    Silsby    Jn^e  ■  '  ""'''    '^°"'"      ''''''''T'     °^     ^^^^'^^^^     P— '     i- 

^>«WonH    V     w-n     A  .       ..  competent  as  to  those  of  more  recent 

V.  Mccormick  ^5  N    C  V^'    ''"'"°      "'^^"-  ■    ""x    ""''^    ^^     ^'-■t'^^'-     ^^^^ 
19  T,     J  '  xf.,^-  ^-  ^-^-  concerning    hearsay    evidence    or    de- 

333        n.'L';;^'*'''^,^^    ^^""-    S^-  ''l^^-'^tions^s  to  boundaries  that  the,^ 

(Mass  f  f 3         ""•      ^''"^'     ^     ^^'^-  "'f    '^''^   prerequisites    to    the    com- 

iliLt  J,  petency  of   such  evidence:      (1)    That 

(M^ss        uJ- w'^""""\    ^.^'■'y  ^^'-   ^^^-''^'-'^tions    nmst   come   fron     a 

i    A    Vr,',     11'    ^^^""^   ""■    Brookhouse,  disinterested  person;    (2)    the  declar- 

7    d    454;   Flagg  v.  Mason.  8  id.  556.  ations    must    have    been    n  ade    JnL 

^;  Smith   V.   Forrest,   49  N.   H.   230.  Htem    motam;    and     (3)     the    pe?  on 

IN    r'P'ii/-    ^^^^y'^Pl^'     7    Jones  who  made  them  must  be  deceased    sS 

^^u:      iu  TT  -^'^^  ''''  ''''""ot  be  produced  and  heard 

lQn<ST?^^"^''-     Hemphill      (N.     C.  in  person  as  a  witness.     Yow  v   Ham 

2U  ^\  ^-   ^-  ^--  ^'t«"-   136  N.  C.  357,  48  N    E    78^ 
Wood  V.  Willard,  ante;  Smith  v.  "'Cheatham    v.    Youn^-    'lis    NC 

--'  161,  18  S.  E.  92,  37  Am.'st.  Rep.  (317." 


110 


Evidence. 


[Chap.  8 


Sec.  99.  Declarations  of  Deceased  Surveyors. 

And  upon  this  ground  the  declarations  of  deceased  surveyors, 
who  have  surveyed  that  or  adjoining  lines,  or  of  any  deceased  per- 
sons who  are  shown  to  have  been  in  a  situation  to  know  the  facts, 
although  they  had  no  interest  whatever  in  the  establishment  of 
the  boundaries,  are  admitted  as  evidence.^  But  the  report  of  a 
sun-eyor  made  in  an  action  to  which  neither  of  the  present  parties 
were  involved  is  not  admissible,^  although  the  presumption  is  of 
the  correctness  of  an  official  survey,  until  the  same  is  impeached.^ 


^Miller  v.  Wood,  Vt.  S.  C.  18G8 
(Rutland  Co.);  Wood  v.  Willard, 
ante;  Porter  v.  Warner,  2  Root 
(Conn.),  22;  Blythe  v.  Sutherland, 
3  McCord  (S.  C),  258.  Morton  v. 
Folger,  15  Cal.  275,  holding  such 
evidence  to  be  a  matter  of  necessity 
in  a  growing  country. 

=^  Helton  V.  Asher,  ^103  Kv.  730,  46 
S.  W.  22,  82  Am.  St.  Rep.  GOl. 

MVatkins  v.  Havighorst,  13  Okl. 
128,  74  Pac.  318.  See,  further,  post 
§  210. 

In  a  South  Carolina  case,  Bljthe 
V.  Sutherland,  ante,  the  question  was 
one  of  location,  or  boundaries  be- 
tween the  parties,  and  arose  in  an 
action  of  trespass  to  try  titles,  which 
is  equivalent  to  a  real  action  at  com- 
mon law.  The  witness  said ;  "  I  was 
well  acquainted  With  the  lines  of 
Watt's  tract,  a  short  time  after  they 
were  run,  and  derived  my  informa- 
tion from  Burnet  Crafton,  the  ori- 
ginal surveyor  who  ran  them.  He 
showed  them  to  me  four  or  five  weeks 
after  he  made  the  survey.  He  show- 
ed me  a  poplar  station  on  the  north 
side  of  the  Oslondy  river  on  Riley's 
line,  W'hich  he  said  was  a  station  for 
both  tracts,  viz..  Watt's  and  Riley's. 
He  then  showed  me  a  stake  which  he 
said  Avas  the  north-western  corner  of 
Watt's  tract,  and  about  two  feet  from 
it  a  hiekorj'  bush  or  small  tree,  now 
a  stump,  which  he  said  was  the  cor- 
ner of  Riley's  land.  I  have  lived 
within  a  mile  of  this  land  ever  since, 
and  am  well  acquainted  with  it.  The 
said  Crafton  further  told  me  that 
the  line  commencing  at  the  fallen 
red  oak  and  running  west  was  made 
by  him,  and  intended  at  first  as  a 
boundary;   but  when   he   came  to  the 


good  fiat  land,  Watt  directed  him  to 
annul  and  discontinue  it,  which  he 
did.  He  then  went  to  Rilej''s  corner, 
and  placed  a  stake  as  a  corner  for 
Watt's  tract,  near  the  hickory  stump 
aforesaid,  and  then  ran  a  line  so  as 
to  intersect  the  widow  Criswell's  line 
below."  This  testimony  was  re- 
jected at  the  circuit,  because  the  sur- 
veyor's death  had  not  been  proved; 
but  on  motion  for  a  new  trial,  the 
court  held  it  to  be  obviously  admis- 
sible as  secondary  evidence;  and  the 
omission  to  provide  proof  of  the  death 
appearing  to  have  been  inadvertent, 
they  granted  a  new  trial,  with  a 
view  that  the  formality  might  be 
supplied. 

The  foimdation  of  this  proof  as  to 
surveyors'  declarations,  and  the 
qualifications  and  aspects  under 
which  it  is  to  be  received,  had  been 
examined  in  several  cases  before  the 
decision  in  the  case  last  referred  to. 
Thus,  in  a  Pennsylvania  case,  Bon- 
nett  v.  Devebaugh,  3  Bin.  (Penn. ) 
175,  in  ejectment,  it  became  material 
for  the  plaintiff  to  show  a  survey  by 
A.,  pursuant  to  instructions,  for  C, 
under  whom  the  plaintiff  claimed; 
and  the  plaintiff  offered  to  show  that 
A.,  who  was  dead,  and  whose  papers 
had  been  burnt,  had  declared  that  he 
had  been  instructed  in  writing  to 
make  the  survey,  and  the  pla-ce 
where.  This  was  held  inadmissible, 
as  not  being  hearsay  in  respect  to 
boundary,  but  in  respect  to  the  con- 
tents of  a  paper.  In  another  case, 
the  plaintiffs  claimed  to  a  certain 
extent,  and  according  to  W.'s  survey. 
W.  was  dead,  and  to  prove  the  ex- 
tent of  the  sun"ey,  they  offered  in 
proof   what   he   had    said.     This    was 


Sec.  100.]         To  Establish  Private  Boundaries. 


311 


Sec.  100.  Of  Persons  shown  to  have  been  in  a  Situation  to  Know. 

It  is  true  that  declarations  of  persons  may  be  introduced  in  evi- 
dence for  the  purpose  of  showing  ancient  boundaries,  but  to  render 


received,  and  held  well.  Tilghman, 
C.  J.,  said :  "  When  boundary  is  in 
question,  what  has  been  said  by  a  de- 
ceased person  is  received  as  evidence. 
It  forms  an  exception  to  the  general 
rule.  It  was  impossible  for  the 
plaintiffs  to  show  the  extent  of  their 
possession  without  showing  the  lines 
rui}  by  W.  Those  lines  were  the 
plaintiffs'  boundaries ;  at  least  such 
was  their  claim.  It  appears  to  me, 
therefore,  that  what  was  said  by  W. 
comes  within  the  exception  which  ad- 
mits the  words  of  a  deceased  person 
to  be  given  in  evidence  in  a  matter 
of  boundary.  Caufman  y.  The 
Presb.  Congregation  of  Cedar  Spring, 
6  Bin.  (Penn.)  .59.  Again,  in  eject- 
ment, the  lessor  of  the  plaintiff 
claimed  a  tract  called  D.,  in  Arun- 
del county  (Maryland),  according 
to  certain  lines,  and  was  allowed 
1o  show  that  the  sun'eyor  appointed 
for  that  county  had  run  the  lines, 
and  made  certain  declarations  as  to 
the  boundaries  and  ttirmiiration  of 
the  lines,  in  connection  with  declara- 
tions from  other  persons  who  were 
dead.  Weem  v.  Disney,  4  H.  &  M'H. 
(Md.)  156.  In.  another  case  the 
plaintiff  claimed  the  locus  in  quo  vui- 
der  a  survey,  etc.,  in  ITS.),  and  the 
defendant  under  a  survey  in  1763. 
On  the  trial  the  defendant  offered  to 
prove  that  in  1786,  D.,  deceased,  had 
shown  a  boundary  line  between  the 
locus  in  quo  and  his,  D.'s,  tract;  and 
had  also  shown  a  witness  a  walnut 
tree,  as  the  common  corner  of  three 
surveys,  one  for  D.,  and  another  for 
.  S.  aiid  F.  This  testimony  was  ad- 
mitted, and,  on  error,  held  well. 
Tilghman,  C.  J.,  said:  "  It  is  not  de- 
nied that,  in  general,  the  declaration 
of  a  deceased  person  as  to  boundary 
is  evidence ;  but  it  is  said  this  dec- 
laration went  to  prove  a  survey.  This 
objection  is  too  refined.  The  sub- 
stance of  the  evidence  was,  that  D. 
showed  the  boundary;  but  this  could 
not  well  be  expressed  without  saying 
of  what    land   it  was   the   boimdary. 


Undoubtedly,  a  boimdary  being 
shown,  some  implication  would  arise 
that  a  survey  had  been  made;  but 
this  is  unavoidable.  It  is  no  objec- 
tion, however,  to  D.'s  declarations. 
Those  declarations  are  only  in  proof 
of  a  boundary;  and  if  the  jury 
thought  tlie  boundary  established, 
the  inference  of  a  sui"vey  would  be 
drawn  directly  from  the  fact  of  a 
boundary.  The  proving  of  a  bound- 
ary is  one  thing,  and  the  consequence 
of  a  boundary  being  proved  an- 
other." Hamilton  v.  Menor,  2  S.  & 
R.  (Penn.)  70.  In  trespass  to  try- 
titles,  the  plaintiff  claimed  a  gum 
tree  as  the  true  corner,  and  was  al- 
lowed to  prove  that  G.,  deceased,  had 
said  he  w^as  a  chain  carrier  at  the 
time  of  the  original  survej^  and  that 
the  gum  tree  was  the  corner  then 
made.  Spear  v.  Coate,  3  McCord 
(S.  C. ),  227.  In  ejectment,  the  de- 
fendant contended  that  the  land  in 
dispute  lay  within  Granville's  line, 
under  which  Granville  he  claimed; 
and  to  show  this  line,  he  was  allowed 
to  give  in  evidence  various  acts  of 
the  legislature  pointing  out  Gran- 
ville's lines  as  the  boundaries  of 
counties,  from  1753  to  1759;  and 
that,  in  1772,  the  same  line  had  been 
run  out  and  marked  by  commission- 
ers as  Granville's  line,  and  had  ever 
since  been  the  reputed  line.  And 
though  it  did  not  appear  how  this 
line  was  ascertained  by  the  survey, 
and  it  was  run  merely  to  ascertain 
county  lines,  yet  this  evidence  was 
held  admissible.  And  Henderson, 
J.,  said  the  rule  that  common  repu- 
tation was  evidence  in  questions  of 
boundary  was  here  much  better  ap- 
plied than  when  we  permit  a  witness 
to  swear  that  a  person,  since  dead, 
told  him  that  a  certain  tree  in  a  re- 
mote wood  was  a  line  or  a  corner  tree 
of  some  other  person's  land.  Taylor 
v.  Roe,  4  Hawks  (S.  C),  IIG,  132. 
And  see  Harris  v.  Powell,  2  Hayw. 
(N.  C.)   349. 


312  EviDE.NCE.  [Chap.  S 

such  evidence  competent,  and  to  bring  it  within  the  exception  re- 
cognized, to  free  it  from  the  objection  of  being  hearsay,  unless  the 
declarant  is  the  owner  and  in  possession  at  the  time  of  making  the 
declaration,  such  person  must  be  shown  to  be  dead,  and  shown  to 
have  had  opportunities  to  know  and  prima  facie  that  he  had  knowl- 
edge of  that  whereof  he  speaks,  and  to  have  been  on  the  land  at 
the  time  of  making  the  declaration,  or  in  possession  of  it  when  he 
made  the  declaration.  ''  To  be  evidence  the  declarations  must  have 
been  made  when  the  declarant  was  pointing  out  or  making  the 
boundaries  or  discharging,  some  duties  thereto."  And  the  declarant 
must  have  had  no  interest  to  misrepresent,  and  the  declaration 
must  have  been  made  ante  litem  motam} 

And  so  with  regard  to  others :  ''  It  cannot  be  doubted  at  this 
day  that  the  declarations  of  deceased  persons,  who  shall  appear  to 
have  been  in  a  situation  to  possess  the  information,  shall,  on  a 
question  of  boundary,  be  received  in  evidence."^  And  there  are 
several  cases  exemplifying  this  proposition.  In  ejectment,  the  de- 
fendant produced  a  witness  who  deposed  that  eighteen  years  ago 
Charles  Ridgely,  deceased,  told  him  that  an  agreement  in  respect 
to  boundaries  between  two  tracts  of  land,  owned  by  T.  and  J.  re- 
spectiveW,  had  been  before  entered  into  by  them,  giving  particu- 
lars.^ It  not  appearing  that  Ridgely  was  interested,  held  his 
declaration  was  admissible.  In  ejectment,  the  plaintiff's  patent 
called  for  a  white  oak  as  the  beginning.  He  proved  a  marked  wliite 
oak ;  and  that  this  was  his  place  of  beginning,  he  was  allowed  to 
prove  the  hearsay  of  a  deceased  person,  who  said  he  heard  a  former 
proprietor,  uoav  also  dead,  say  that  the  white  oak  was  the  beginning 
tree;  and  also  the  hearsay  of  another,  who  said  he  ran  out  (sur- 
veyed) the  land  for  the  said  proprietor  when  he  purchased  it,  and 
began  at  the  said  white  oak,  in  the  year  1766.*  In  the  last  case 
the  court  received  what  is  called  hearsay  in  the  second  degree.^ 

'Barrett    v.    Kelly,    131    Ala.    378,  °  On     similar     evidence     being  •  re- 

30  So.   824.     Emmet  v.   Perry.    (Me.,  ceived  and  acted   upon  at  a   trial  in 

1905),   60   A.   872.      But  in   Vermont  Tennessee,     the     Supreme     Court     of 

the  declarations  need  not  be  made  on  Errors    and    Appeals    in    that    State 

the    premises.   Hathaway   v.    Goslant,  had    occasion    to   jaass    directly   upon 

(Vt.,   1905),  59  A.  835."  its    admissibility.     In    ejectment    (A. 

^  Per     CoLCOCK,     J.,     in     Spear    v.  D.  1812).  it  became  necessary  for  the 

Coate,  3  M'Cord    (S.  C),  229.  defendant     to     show     where     Julius 

'Hall  V.  Gittings,  2  H.  &  J.    (Md.)  Sanders  and  others  crossed  Elk  river 

112,  121.  1781,    it    being    the    place    of    begin- 

*  Harris    v.    Powell,    2    HayAV.     (N.  ning  called  for  both  in  the  entry  and 

C.)   349.  grant  of  the  defendant.     The  defend- 


Sec.  101.]         To  Establish  Private  Boundaeies. 


31S 


Sec.  loi.  When  Hearsay  is  not  Admissible. 

But  no  oral  evidence,  much  less  hearsay,  can  be  received  to 
change  the  objects  mentioned  in  a  deed,  entry  or  survey,  or,  in 
other  words,  to  substitute  one  object  for  another.  When  corners  in. 
a  deed  are  lost,  they  may  be  proved  by  reputation,  but  not  to  con- 
tradict the  deed ;  as,  where  the  deed  sets  up  a  sugar  and  ash  tree 
as  the  southeast,  and  two  beeches  for  the  northeast  corner,  reputa- 
tion is  not  admissible  to  substitute  a  hickory,  oak  and  beech  tree 
for  the  first,  nor  two  hickories  for  the  other. ^  Declarations  of  the 
officers  of  a  corporation  as  to  the  boundaries  of  land  formerly 
owned  by  it  are  inadmissible  as  hearsay." 


every 
Julius 
tiniony 
pctent. 


ant  introduced  Joseph  Greer  to  prove 
what  Alexander  Greer  told  him  had 
been  said  by  Sanders  on  that  subject, 
both  Sanders  and  Alexander  Greer 
being  dead.  The  court  allowed  this, 
though  it  appeared  that  another  wit- 
ness, still  alive,  was  present  and 
heard  what  Sanders  said.  The 
Court  said :  "  We  admit  that 
remove    which    is    made    from 

Sanders  renders  the  tes- 
weaker;   but   it   is   still   com- 

The  object  is  to  prove  where 
Sanders  crossed  the  Elk  river.  No 
doubt  exists  but  what  this  may  be 
done  from  evidence  of  what  persons 
now  dead  have  been  heard  to  say. 
The  same  rule  applies  to  all  cases  of 
pedigree,  prescription  or  ancient 
landmarks.  If  Alexander  Greer  were 
living  and  present,  it  would  be  com- 
petent for  him  to  prove  what  San- 
ders had  said;  and  he  being  dead, 
Joseph  Greer  may  be  permitted  to 
prove  what  Alexander  Greer  told 
him  had  been  said  by  Sanders.  It  is 
equally  competent,  though  weaker 
testimony.  The  reason  why,  in  cases 
of  pedigree,  prescription  and  ancient 
boundary,  the  party  may  prove  what 
persons,"  then  dead,  have  been  heard 
to  say  when  living,  is,  that  in  such 
cases  the  party  claiming  the  benefit 
of  the  evidence  shall  not  be  deprived 
of  it  by  the  death  of  the  witness,  if 
he  can  in  any  wise  show  what  knowl- 
edge the  witness  had  on  the  subject. 
What  he  has  been  heard  to  say,  is 
pretty  strong  evidence  of  what  he 
knew."       The    court    admitted    that 


perhaps  the  statement  of  the  witness 
who  heard  Sanders  would  be  more 
satisfactory;  but  it  might  be  con- 
tended, with  the  same  propriety,  that 
evidence  direct  of  what  Sanders  had 
said  would  not  be  admissible  testi- 
mon}%  because  other  persons  were 
along  with  him  when  he  crossed  Elk 
river,  who  are  now  living  and  capable 
of  being  produced.  Beard  v.  Talbot, 
1  Cooke    (Tenn.),  142. 

'M'Coy  V.  Galloway,  3  Ohio,  282, 
283. 

^  Southern  Iron  Works  v.  Central 
of  Georgia  Railway  Co.,  131  Ala. 
649,  31  So.  723. 

The  admissibility  and  influence  of 
hearsay  and  reputation,  in  respect  to 
boundaries,  was  much  considered  by 
Washington,  J.,  on  a  question 
which  arose  as  to  the  extent  of  a 
tract  of  land  called  the  manor  of 
Springetsbury,  in  the  State  of  Penn- 
sylania.  William  Penn,  the  patentee 
of  the  whole  State  (province)  from 
Charles  the  First  (in  1668),  and  his 
descendants,  the  proprietors,  estab- 
lished and  kept  on  foot  a  land- 
office,  and  issued  regulations  whereby 
settlers  might,  by  locations  and 
surveys,  to  be  made  according 
to  the  rules  of  the  office,  ac- 
quire equitable  rights  to  convey- 
ances of  the  lands  so  designated  by 
them;  the  proprietors  reserving  a 
right  to  appropriate  to  themselves 
one-tenth  of  the  State,  by  the  like 
surveys.  These  regulations  contin- 
ued, and  were  recognized  by  the  gov- 
ernment as  valid,   from  the  time  of 


314 


Evidence. 


[Chap.  8 


Sec.  102.  Declarations  of  Owners  against  Interest. 

Declarations  by  the  owners  of  the  land,  made  against  their  pe- 


the    original    grant    down    to    1776. 
Under    them,   in    1722,   a   survey  was 
made  by  the  government,  and  recog- 
nized by  the  proprietors  of  about  70,- 
000    acres,    reserved    lands,    under    a 
warrant    to    surveyors,    pointing    out 
the  precise  metes   and  bounds  of  the 
tract.     This   tract   was    surveyed    for 
the  use  of  Springet   Penn,  one  of  the 
proprietors;    but    it    did    not    appear 
whether  the  survey  was  made  in  fact 
on  the  land,  by  marks,  designation  or 
admeasurement,  or  whether  it  might 
not  have   been  a  mere  paper   survey, 
drawn  out  into  a  map  from  calcula» 
tions  made  under  the  warrant.       Af- 
terwards, from  this  time  to  1768,  va- 
rious   contracts    or    licenses    of    sale, 
and    warrants    of    survey,    etc.,    were 
granted    by    the    proprietors    of    this 
manor     to     settlers     as     within     the 
manor;   and    others   claimed    to   have 
located    upon   territorial    lands    with- 
out the   manor;      but   the   latter,   as 
the  proprietors  claimed,  had  located, 
in  truth,  within  the  manor.       There 
had  been  a  resurvey  by  the  proprie- 
tors  in    1768,   in   consequence   of    the 
one    in    1722    having   been   destroyed. 
This   last   comprehended   all   the   set- 
tlers  whose   rights   were    in   question 
in  the  suit.       That  of   1722  compre- 
hended only  a  part.     A  bill  in  equity 
was  filed  by  all  those  settlers  against 
J.  and   W.   Penn,  the  now  legal   pro- 
prietors,  to  compel   a   specific  execu- 
tion of  the  several  contracts  made  by 
those  under  whom  they  claimed;   and 
it   became   quite  material,  in   respect 
to  the  different  interests  of  the  com- 
plainants,     to     ascertain      the     true 
bounds  of  the  manor.       It  appeared 
most  abundantly  from  the  acts  of  the 
proprietors     intermediate     1722     and 
1768,  sucli  as  licenses  to  take  up,  and 
grants  of  specified  tracts  of  land,  and 
a    warrant    for    laying    out    a    town, 
warrants  to  agree  for  land,  and  war- 
rants    to    adjust    differences    among 
settlers,  etc.,  that  they  all  along  sup- 
posed the   manor   to  comprehend  the 
lands  covered  by  the  last  survey.     A 
letter    was    received    in    evidence    re- 
specting   the    boundary,    directed    to 


one  of  the  proprietors.  The  actual 
settlements  and  improvements  made 
by  licensed  settlers  within  the  manor, 
and  the  surveys  and  settlements 
made  around  and  adjoining  the  dif- 
ferent lines  of  the  manor,  were  also 
in  evidence.  All  these  were  inter- 
mediate the  survey  of  1722  and 
1768;  and  they  all  had  reference  to 
or  accorded  with  the  boundaries  in 
the  last  survey.  Tliese  things  to- 
gether showed  the  putative  bounda- 
ries of  the  manor  to  agree  with  the 
last  survey  as  early  as  1736,  and 
from  that  time  to  1814;  and  this, 
although,  as  Judge  Washi>^gton  ex- 
presses it.  the  two  surveys  varied  ex- 
travagantly. He  could  find  in  the 
proof  no  intermediate  survey  to  ac- 
count for  this;  and  he  supposes  that 
the  locations,  being  made  in  such 
utter  disregard  of  the  first  survey, 
might  have  arisen  from  the  lines  of 
that  survey  not  being  actually  meas- 
ured, but  guessed  at,  or  some  of  the 
courses  only  being  run.  On  the  sub- 
ject of  such  sui-\'eys,  followed  by  re- 
puted and  practical  boundaries  which 
conflicted  with  them,  and  the  evi- 
dence receivable  on  this  head,  he  pro- 
ceeds :  "  No  gentleman  of  the  profes- 
sion, who  is  at  all  conversant  with 
land  trials,  can  be  ignorant  that  the 
courses  and  distances  laid  down  in 
a  survey,  especially  if  it  be  ancient, 
are  never  in  practice  considered  as 
conclusive;  but,  on  the  contrary,  they 
are  liable  to  be  materially  changed 
by  oral  proof,  or  other  evidence  tend- 
ing to  prove  that  the  documentary 
lines  are  not  those  actually  run.  How 
often  have  we  known  reputed  bound- 
aries, proved  by  the  testimony  of 
aged  witnesses,  and  even  by  hearsay 
evidence,  established  in  opposition  to 
the  most  precise  calls  of  an  ancient 
patent?  such  evidence  has  been  con- 
stantly received;  and  distances  have 
been  lengthened  or  shortened  without 
the  slightest  regard  to  the  call  of  the 
patent.  The  reason  is  obvious;  it  is 
not  the  lines  reported,  but  the  lines 
actually  run  by  the  surveyor,  which 
vests    in    the.  patentee    the    area    in- 


Sec.  102.]         To  EsTABLispi  Private  Boundaries. 


315 


cuniarij  or  proprietary  interest,  are  admissible/  provided  they 
do  not  question  a  title  which  the  declarant  had  no  right  to  ques- 
tion/ and  under  this  rule  the  declarations  of  one  in  possession  of 
land,  in  disparagement  of  his  own  title,  are  admissible  in  evidence 
against  him  and  those  claiming  under  him ;  but  declarations  in 
favor  of  his  own  title  are  inadmissible.^  Thus,  the  declaration  of  a 
person  made  upon  land,  while  he  was  in  possession  thereof  under 
an  undisputed  claim  of  title,  that  his  line  extended  to  a  certain 
boundary,  which  he  pointed  out  at  the  time,  is  admissible  in  evi- 


cluded  within  these  lines.     The  sur- 
vey  returned,    or   the    patent,   is   the 
evidence     of     the     former;      natural 
marks  of  reputation  is.  in  almost  all 
cases,  the  evidence  of  the  latter.    The 
mistakes  committed  by  surveyors  and 
chain  carriers,   more   particularly   in 
an  unsettled  country  and  wilderness, 
have  been  so  common,  and  are  so  gen- 
erally acknowledged,  as  to  have  given 
rise  to  a  principle  of  law,  as  well  set- 
tled* as    any    which    enters    into    the 
land  titles  of  this  country,  which  is, 
that   when   the  mistake   is   shown   by 
satisfactoiy  proof,   courts  of  law,  as 
well  as  courts  of  equity,  have  looked 
beyond  the  patent  to  correct  it.       It 
will    readily    be    admitted    that    such 
evidence     should     be     cautiously     re- 
ceived, if  it  should  have  a  preponder- 
ating   influence    in    determining    the 
question    of    bound'ary.        Subsequent 
locators  look,  in  the  first  instance,  to 
the  survey  as  made  and'  returned,  for 
a     demarkation    of    the    tract,     with 
which  they  must  not  interfere.     But 
U   a   mistake   is   apparent    upon    the 
face  of  the   survey,  txaken   in  connec- 
tion  with   the   natural   and  artificial 
marks  on  the  ground;   if  the  reputa- 
tion    of    the     neighborhood     has     as- 
signed  to   the  tract   of   land   so   sur- 
veyed,     boundaries      different      from 
those    delineated    on    the    survey    re- 
turned,   a    subsequent   location   'is    so 
far    affected    by    notice    of    the    real 
boundaries   of   the  tract  on  which   it 
would  adjoin,  that  a  claimant  under 
it  cannot,  even  in  a  court  of  equity, 
set    up    his    posterior    equitable    title 
against  the  legal  or  equitable  title  of 
the  first  locator.     In  short,  he  cannot 
assert  that  he  was  a  purchaser  with- 
out notice,  in  the  face  of  strong  evi- 


dence   to    the    contrary."       Conn     v 
Penn,  1  Pet.   (U.  S.)  C.  C.  496. 

'Putnam  v.  Fisher,  52  Vt.  191; 
Evarts  v.  Young,  52  id.  329;  Smith 
V.  Martin,  17  Conn.  399;  Beers  v 
Hawley,  2  id.  407;  Diuiing  v.  Car- 
nngton,  12  id.  1;  Rogers  v.  Moore, 
10  id.  13;  Norton  v.  Pettibone,  7  id' 
319;  White  v.  Long,  24  Pick.  (Mass.) 
319. 

=  Parsons,  J.,  in  Putnam  v. 
Fisher,  ante. 

'Osgood       V.       Coates,       1       Allen 
(Mass.),   77;      Maxwell   v.   Harrison, 
8  Ga.   61;  Alden  v.   Gilmore,    13  Me. 
178;   Peabody  v.  Hewett,  52  Me.   33; 
Webster  v.  Saunders,  4  H.  &  J.  (JId.)' 
287;   West    Cambridge   v.    Lexington 
2     Pick.     (Mass.)     536;      Church    v. 
Burghardt,  8  id.  327 ;   Xiles  v.  Patch 
13  Gray  (Mass.),  254;   Hale  v.  Sillo- 
way,    1    Allen    (Mass.),    21-   Dow    v. 
Jewell,  18  N.  H.  340;  W^oods  v.  Blod- 
gett,  18  X.  H.  249;   Spence  v.  Smith, 
id.    587;      Bell   v.    Woodward,    46   N. 
H.  315;   Waring  v.  Warren,  1  Johns. 
(N.    Y.)     340;      Jackson    v.    Bard,    4 
id.  230;  Jackson   v.   Shearman,   6   id. 
19 ;      Jackson   v.    Anderson,    4    Wend. 
(N.   Y.)    474;      Podgett   v.  Lawrence! 
iO   Paige    (N.  Y.),   170;      Jackson  v. 
Cole.   4   Cow.    (N.   Y.)    587;   Pitts   v 
Wilder,  1  N.  Y.  525 ;   Gibnev  v.  Mar- 
chay,   34    N.   Y.    301;   Burlingame    v. 
Robbms,    21     Barb.      (N.     Y.)     327; 
Heister    v.    Laird,    W.   &   S.    (Penn.) 
245;   Sailor  v.  Hertzogg,  2  Penn.   St. 
182;   Read   v.   Thompson,   5    id.    327; 
St.  Clair  v.  Shale,  9  id.  252 ;  Sample 
V.  Robb,  16  id.  305;     Alden  v.  Grove, 
18  id.  377;   L«ger  v.  Doyle,   11   Rich! 
(S.   C.)    L.    109;   Wallace  v.   Wilcox 
27  Tex.  60. 


316  Evidence.  [Chap.  8 

dence,  after  his  decease,  in  favor  of  those  who  claim  under  him, 
on  the  trial  of  a  question  arising  subsequently  concerning  the 
boundary  line  of  the  same  tract  of  land."*  Declarations  of  persons 
in  possession  of  property  can  only  be  given  in  evidence  as  part  of 
the  res  gestae,  or  in  respect  to  their  interest  in  the  subject-matter,^ 
and  a  party  must  be  proved  to  have  been  in  possession,  before  his 
declarations  made  at  the  time  are  admissible  as  part  of  the  res 
gestae,  and  as  explanatory  of  the  possession.^  So,  in  Maine,  the 
rule  seems  to  be  confined  to  cases  where  the  owner  makes  the 
declaration  while  pointing  out  the  boundary.''  But  in  Vermont 
declarations  by  a  deceased  person  while  in  possession  of  land  as  to 
its  boundaries  are  admissible  although  not  a  part  of  the  res  gestae 
nor  accompanying  any  act  affecting  the  declarant's  title,  and  even 
though  not  made  upon  or  in  the  immediate  vicinity  of  the  bound- 
ary referred  to.^  And  in  Xew  Hampshire  declarations  of  a  former 
deceased  owner  of  land  made  while  in  possession  are  competent 
upon  the  question  of  its  boundaries  in  favor  of  as  well  as  against 
one  claiming  under  him.^  In  an  action  of  ejectment,  the  ad- 
missions of  the  person  occupying  the  land  are  incompetent  unless 
there  can  be  some  privity  shown  between  him  and  the  defendant ; 
and  even  then  are  inadmissible  if  he  can  be  personally  called  as  a 
witness.^**  Where  a  tenant  has  made  admissions  or  declarations  as 
to  the  character  and.  extent  of  his  tenancy,  they  are  admissible 
against  him  in  a  suit  between  him  and  his  landlord  in  respect  to  the 
possession,  no  matter  to  whom  they  were  made.  It  is  not  essen- 
tial that  such  admissions,  to  be  available,  should  be  made  to  the 

MVood  V.  Foster,  8  Allen    (Mass.),  Penii.    St.   46;  Trotter  v.   Watson,   6 

24-  Barrett  v.  Kelly,  131  Ala.  378.  30  Humph.    (Tenn.)    509. 

So_  824.                      '  'Ellis     V.     Janes,     10     Cal.      456; 

°  Degraflfenreid  v.   Thomas,   14  Ala.  Thomas     v.     Degraffenreid,     17     Ala. 

681:      Andrews    v.    Fleming.   2    Dall.  602 :  May  v.  Jones,  4  Litt.   (Ky.)   21; 

93:      Bliss  v.    Winston.    1    Ala.    344;  Whiting  v.   Bacon,   9   Gray    (Mass.), 

Xelson  V.   Iverson,    17    id.   216;   Had-  206;   Tomlin   v.  Den,  4   Harr.    (Del.) 

den  V.  Powell,  id.  314;   Perry  v.  Gra-  76;   State  v.  Emory.  6  Jones   (N.  C.) 

ham,     18     Ala.    822;      Thompson    v.  L.   133;      Reed    v.    Dickey,    1    Watts 

Drake,   32   Ala.   99;   Williams   v.   En-  (Penn. ),    152. 

sign,  4  Conn.  456;   Hillhouse  v.  Dun-  'Emmet  v.   Perry    (Me.,   1905),  60 

iiino^,  7  Conn.   139';   Dawson  v.  Calla-  A.  872. 

way,  18  Ga.  573;   West  v.  Price,  2  J.  *  Hathaw-ay  v.  Goslant   (Vt.,  1905), 

J.     Marsh.      (Ky.)      380;      Young    v.  59  A.  835. 

Adams,     14     B.     Mon.      (Ky.)      127;  'Nutter  v.   Tucker,  67   N.    H.    185, 

Marcy  v.   Stone,  8  Cush.    (Mass.)    4;  30  A.  352,  68  Am.  St.  Rep.  647. 

Hodgdon  v.  Shannon,  44  X.   H.   572;  i"  Hanley  v.  Erskine,   19  111.  265. 
DulTey     v.     Congregation,     etc.,     48 


•Sec.  102.]         To  Establish  Private  Boundaries. 


317 


landlord  or  his  agent, ^^  The  declaration  of  a  deceased  tenant  in  com- 
mon of  land,  that  he  had  made 'a  verbal  division  with  his  co- 
tenant,  and  subsequently  that  he  had  received  from  his  co-tenant 
a  deed  of  division,  was  held  to  be  admissible  in  evidence  against 
his  heirs  in  support  of  the  presumption  that  he  gave  a  correspond- 
ing deed  to  his  co-tenant.^"  So  declarations  of  an  occupant  of  land, 
while  in  possession,  that  he  was  only  a  tenant  of  another,  are  com- 
petent evidence  in  favor  of  the  latter  against  a  third  person,  after 
the  death  of  the  occupant,  but  not  before." 

Declarations  made  by  an  owner  in  his  own  favor  are  not  ad- 
missible to  show  the  location  of  a  boundary,  but  are  for  the  pur- 
poses of  showing  non-acquiescence  in  a  different  line  or  boundary." 


"Secor  V.  Pestana,  37  111.  525; 
Hamilton  v.  Paine,  17  Me.  219:  Will- 
iams V.  Mayor,  G  H.  &  J.   (Md.)   529. 

'=  White  V.  Loring,  24  Pick.  (Mass.) 
319. 

"  Currier  v.  Gale,  14  Gray 
(Mass.),  504;  Rand  v.  Dodge,  17  N. 
H.  343. 

"  In  Young  v.  Evarts,  ante,  such 
declarations  were  admitted  to  show 
non-acquiescence,  but  not  to  prove 
the  true  line,  the  declarant  being 
interested.  The  court  said :  "  The 
plaintiff's  testimony  tended  to  show 
that  he  and  his  brother  Anson  and 
father  Reuben,  in  1831,  procured  a 
surveyor,  Judge  Beeman,  to  run  the 
line — not  on  the  line  between  the 
lots — so  that  there  was  an  exchange 
of  a  small  amount  of  land  between 
them,  and  that  the  line  thus  run  was 
acquiesced  in  by  him  and  Anson 
Evarts  until  the  death  of  Anson 
Evarts,  in  1874,  and  was  the  line  to 
which  he  claimed.  This  testimony 
was  uncontradicted,  except  by  the 
declarations  of  Anson  Evarts,  made 
within  the  last  twelve  or  fifteen 
years,  that  the  'stone  corner'  was 
the  corner  of  his  land,  and  by  a  dec- 
laration of  the  plaintiff,  made  nine- 
teen years  before  the  trial,  in  re- 
gard to  the  location  of  the  end  of  a 
vv^all  built  by  him,  running  at  right 
angles  with  the  line.  The  declara- 
tions of  Anson  Evarts  were  allowed 
to  be  shown,  against  the  exception 
of  the  plaintiff,  and  were  allo'wed 
by  the  court  to  be  used  as  tending 
to  show  where  the  line  between  them 


in  fact  was.       In  giving,  or  allowing 
to    be    given,    to    this    evidence    this 
scope  and  effect,  we  think  the  County 
Court  erred.     A  party  is  not  allowed 
to   show  his  own  declarations  or  the 
declarations   of   those   tlirough   whom 
he    claims    title,    in    his    own    favor, 
unless    such    declarations    accompany 
and     give     character     to     some     act 
affecting  his   title,   and   so   become   a 
part  of  the  res  gestae.     This  subject 
has     frequently     received     the     con- 
sideration   of    this    court.     In    Wood 
V.    Willard,    36   Vt.   82,   it  was    held 
that   the   declaration   of   the   grantor 
as   to   where    his   line   was,    made   at 
the    time    he   sold    and    conveyed   the 
premises   to  the   plaintiff,    and   while 
upon   the    premises    pointing   out   the 
line,    were   not   admissible.        On    the 
other   hand,   in  Kimball   v.   Ladd,   42 
Vt.  747;   Noble  v.  Sylvester,  id.   146; 
Perkins    v.    Blood,   30    id.    273,    it    is 
held  that  the  declaration  of  a  party 
or    of    a    person    through    whom    the 
party   derives    title,   made   while    ex- 
ercising   a    right    or    easement,    and 
tending  to  show   that  he   claimed  to 
exercise  it  in  his  own  right,  or  that 
he  had  not  abandoned  his  prior  pos- 
session  or   right   to  a   piece   of  prop- 
erty,   are    admissible    for    such    pur- 
pose only.     Under   this   rule  tne  dec- 
larations- of    Anson    Evarts    allowed 
to     be     shown     were     admissible     to 
rebut   the  testimony   of   the   plaintiff 
tending  to  show   that  at  the  several 
times    when   they   were  made,   Anson 
Evarts    was    acquiescing   in    the    line 
claimed  by  the  plaintiff,  and  only  for 


318 


Evidence. 


[Chap.  8 


The  same  rule  as  to  lis  mota  prevails  in  reference  to  this  class  of 
declarations  as  prevails  in  reference  to  declarations  relating  to 


f-uch  purpose.  They  were  not  ad- 
missible for  the  purpose  of  showing 
Avhere  the  Beeman  line  was,  nor 
where  the  true  line  between  him 
and  the  plaintiff  then  was;  and  on 
the  question  of  acquiescence  they 
phould  be  confined  strictly  to  the 
periods  of  time  at  which  they  were 
respectively  made,  and  not  be  al- 
lowed as  tending  to  show  that  he 
had  not,  from  1831  to  the  time  of 
making  such  declarations,  acqui- 
esced in  the  line,  as  the  plaintiff's 
te&timony  tended  to  show.  Acqui- 
escence is  the  state  of  a  party's 
mind  regarding  a  particular  subject 
or  thing,  and  his  declarations  on  that 
subject  or  thing  are  the  indices  of 
his  state  of  mind  thereon  at  the 
times  they  are  respectively  made. 

"  These  declarations,  although  An- 
son Evarts  has  deceased,  do  not  fall 
within  the  rule  established  in  Wood 
V.  Willard,  37  Vt.  377;  Powers  v. 
Silsby,  41  id.  288,  and  some  other 
more  recent  cases,  allowing  hearsay 
testimony,  or  declarations  in  regard 
to  ancient  boundaries  between  the  es- 
tates of  private  individuals.  The 
rule  for  the  admission  of  such  testi- 
mony, as  expressed  by  Pierpoint,  C. 
J.,  in  Wood  V.  Willard,  supra,  is, 
'  that  the  declarations  of  deceased 
persons  who  had  actual  knowledge  as 
to  the  location  of  such  boundaries, 
or  who,  from  their  connection  with 
the  property  itself,  or  their  situation 
and  experience  in  regard  to  such 
boundaries  and  the  surveys  thereof, 
had  particular  means  of  knowledge, 
so  that  it  may  fairly  be  inferred  that 
they  had  actual  knowledge  of  the 
same,  made  at  a  time  when  they  had 
no  interest  to  misr-epresent,  *  *  * 
may  be  received  as  to  the  location  of 
suc"h  boundary,  when  from  lapse  of 
time  there  can  be  no  reasonable 
probability  that  evidence  can  be 
obtained  from  those  who  had  actual 
knowledge  on  the  subject.'  It  is  an 
important  qualification  that  the  de- 
clarant, at  the  time,  of  making  the 
declaration,  should  have  no  interest 
to      misrepresent.        Anson      Evarts 


making  a  claim  in  his  own  favor  was 
not  thus  disinterested.  Whether  the 
transaction  in  regard  to  the  Beeman 
line  was  of  such  antiquity  as  to 
allow  this  class  of  testimony  for  the 
establishment  of  its  location,  is  not 
admitted  nor  decided,  as  this  testi- 
mony for  this  purpose  is  held  inad- 
missible, on  the  ground  that  Anson 
Evarts,  when  he  made  the  declara- 
tions, was  interested  in  having  the 
stone  corner  established  as  his  cor- 
ner." 

The  following  is  an  abstract  of  a 
portion  of  Hunicutt  v.  Peyton, 
102  U.  S.  333,  26  L.  Ed.  113: 
A  witness  called  to  prove  the  lo- 
cation of  private  lands  was  al- 
lowed to  testify  that  one  M.,  a  sur- 
veyor, had,  while  absent  from  the 
lands  in  question,,  told  him  the  loca- 
tion and  direction  of  certain  kound- 
ary  lines  which  M.  said  to  witness  he 
(M.)  had  surA'eyed,  and  witness  was 
allowed  to  state  what  the  declara- 
tions of  M.  were.  Held  error.  Elli- 
cott  v.  Pearl,  10  Pet.  (U.  S.)  412; 
Bartlett  v.  Emerson,  7  Gray  (Mass.) ,_ 
174;  5  Met.  (Mass.)  223;  Long  v. 
Cotton,  IIG  Mass.  414;  Bender  v. 
Pierce.  27  Penn.  St.  335.  The  con- 
clusion to  which  a  great  majority  of 
the  decisions  of  State  courts  lead 
upon  this  subject  is  this:  In  ques- 
tions of  private  boundary,  declara- 
tions of  particular  facts,  as  distin- 
guished  from  reputation,  made  by- 
deceased  persons,  are  not  admis- 
sible, unless  they  were  made  by 
persons  shown  to  have  had  knowl- 
edge of  that  whereof  they  spoke,  or 
persons  on  the  land,  or  in  possession 
of  it  when  the  declarations  were 
made.  To  be  evidence,  tl>ey  must 
have  been  made  when  the  declarant 
was  pointing  out  or  marking  the 
boundaries  or  discharging  some 
duties  relating  thereto.  A  declara- 
tion which  is  a  mere  recital  of  some- 
thing past  is  not  an  exception  to  the 
rule  that  excludes  hearsay  evidence. 
In  Long  V.  Cotton,  116  Mass.  114^ 
the  court  said:  "The  declarations  of 
deceased    persons    respecting    bound- 


Sec.  102.]         To  Establish  Private  Boundaries. 


319 


matters  of  general  or  public  interest ;  therefore  reference  is  made 
to  that  chapter  for  the  rules  in  that  respect. 


aries  are  received  as  evidence  as  an  < 
exception  to  the  rule  which  rejects 
hearsay  testimony.  In  most  of  the 
decided  cases  it  is  held  that  the 
declaration  should  appear  to  have 
been  made  in  disparagement  of  title, 
or  against  the  interest  of  the  party 
making  it;  but  in  Daggett  v.  Shaw, 
5  Met.  223,  it  is  said  that  the  rule  as 
practiced  in  this  commonwealth,  is 
not  so  restricted,  and  that  declara- 
tions of  ancient  persons,  made  while 
no  possession  of  land  owned  by  them, 
pointing  out  their  boundaries  on  the 
land  itself,  are  admissible  as  evi- 
dence when  nothing  appears  to  show 
that  they  are  interested  to  misrep- 
resent, and  it  need  not  appear 
affirmatively  that  the  declaration 
was  made  in  restriction  of  or  against 
their  own  rights.  And  in  Bartlett 
V.  Emerson,  7  Gray,  174,  it  is  held 
that  to  be  admissible,  such  declara- 
tions must  have  been  made  bv  per- 
sons now  deceased,  while  in  posses- 
sion of  land  owned  by  them,  and  in 
the  act  of  pointing  out  their  bound- 
aries, with  respect  to  such  bound- 
aries, and  when  nothing  appears  to 
show  an  interest  to  deceive  or  mis- 
represent. Ware  v.  Brookhouse,  7 
Gray  (Mass.),  554;  Flagg  v.  Mason, 
8  id.  556. 

"  The  declarations  offered  and  re- 
jected at  the  trial  do  not  come 
within  the  exception  thus  defined  to 
the  rule  by  which  hearsay  is  ex- 
cluded. The  decisive  objection  to 
their  competency  is  that  they  do  not 
appear  to  have  been  made  while  in 
the  act  of  pointing  out  the  bound- 
aries of  the  declarant's  land.       This 


is  an  element  Avhich  cannot  be  dis- 
regarded, especially  when  the  ques- 
tion is  one  of  private  boundary. 
The  declaration  derives  its  force  as 
evidence  from  the  fact  that  it  ac- 
companies an  act  which  it  qualifies 
or  gives  character  to.  The  declara- 
tion is  then  a  part  of  the  act.  With- 
out such  accompanying  act,  the  dec- 
laration is  mere  narrative,  liable 
to  be  misunderstood  or  misapplied, 
and  open  to  the  objections  which 
prevail  gainst  hearsay  evidence. 

"  The  declaration  rejected  does, 
not  appear  to  have  been  offered  for 
the  purpose  of  establishing  a  bound- 
ary by  traditionary  evidence  or  rep- 
utation. Such  evidence  has  some- 
times been  said  by  American  courtss- 
to  be  admissible;  and  in  the  cases 
from  New  Hampshire,  cited  by  the 
defendant,  it  seems  to  be  held  that 
declarations  of  deceased  persons, 
who,  from  their  situation,  appear  to 
have  the  means  of  knowledge,  and 
who  have  no  interest  to  misrepresent 
the  facts,  are  admissible  to  establish 
private  boundaries,  although  not 
made  on  the  land.  Smith  v.  Forrest, 
49  N.  H.  230,  237;  Great  Falls  Co. 
v.  Worster,  15  id.  412,  437.  But  by 
the  current  of  authority  and  upon 
the  better  reason,  such  evidence  ia 
inadmissible  for  the  purpose  of  prov- 
ing the  boundary  of  a  private  es- 
tate, where  such  boundary  is  not 
identical  with  another  of  a  public  or 
quasi  public  nature.  1  Greenl.  Ev. 
§  145;  1  Phil.  Ev.  (N.  Y.  ed.  1849) 
241,  242;  Cowen  &  Hill's  Not«s; 
Hall  v.  Mayo,  97  Mass.  416." 


CHAPTER  IX.  - 

Dyixg  Declarations. 

Section  103.  When  admissible. 

104.  To  what  matters  admissible. 

105.  Declarations  must  be  complete. 

106.  Considerations  which  should  control  as  to  admission  of. 

Sec.  103.  When  Admissible. 

Another  exception  to  the  rule  excluding  hearsay  evidence, 
which,  however,  is  of  more  importance  in  criminal,  than  in  civil 
cases,  is  made  in  favor  of  the  declarations  of  a  deceased  person, 
made  m  extremis,  as  to  the  cause  of  his  death  and  the  person  who 
inflicted  the  fatal  wound ;  in  criminal  cases  only  where  the  death 
of  the  deceased  is  the  subject  of  the  charge,^  and  the  circum- 
stances of  the  death  are  the  subject  of  the  dying  declarations,  and 
never,  under  any  circumstances,  in  civil  cases  ;^  and  this  rule  is 
held  not  to  impugn  the  constitutional  right  of  the  accused  to  be 
confronted  by  the  witnesses  against  him,  as  the  constitution  does 

'Confined   to  homicide.     Thaver  v.  Hawks  ( X.  C. ),  442 ;  Nelson  v    State 

Lombard,    16.5    Mass.    174,    42    X.    E.  7    Humph.     (Tenn.)'542;      Moore'  v' 

563,  52  Am.  St.  Rep.  507.     Under  an  State,  12  Ala.  764;   Robbins  v.  State' 

indictment    not    charging    specifically  8    Ohio    St.     131;      Bull's     Case,     I4' 

either   murder    or   manslaughter,   but  Gratt.    (Va.)    613;     State    v.    Center, 

setting  forth  an  attempt  on  the  part  35  Vt.  378;   People  v.  Knickerbocker] 

of  the  defendant  to  procure  an  abor-  1   Parker  Cr.    (X.  Y.)    302;   Stat*  v. 

tion,     in     consequence     whereof     the  Arnold,    13    Ired.     (X.    C.)     L.    184;* 

Avoman  died,  the  dying  declaration  of  State  v.  Thawlev.  4  Har.    (Del.)   562; 

the  woman  is  admissible  in  evidence.  Dunn  v.  State,  2  Ark.  229  •     Goodall 

State  V.  Meyer,  65  X.  J.  L.  237,  47  A.  v.    State,    1    Oregon,    333;'    Cone    v. 

486,  86_Am.   St.   Rep.  634,  and  note,  Cooper,  5  Allen    (Mass.),  495.       The 

page  637.     See,   also,   Montgomery  v.  dying      declarations      of      a      person 

State,  80  Ind.  338,  41  A.  815.  fatally   injured   bv   the   negligence   of 

'State   V.   Quick,   15  Rich.    (S.   C.)  another,  as    to    the    facts    attending 

342;   Thompson  v.  State,  24  Ga.  297;  the  injury,  are  not  admissible  against 

People  V.   Vernon,   35   Cal.   49;   State  .such  person  in  a  civil  action  brought 

V.  Reed,  5  Phila.    (Penn.)    528;   State  to    recover    damages    for    the    injury. 

V.  Brunetto,.  13  La.  An.  45;   State  v.  Daily   v.    X.    Y.,   &c..    R.    R.    Co.,    32 

Xash,  7  Iowa,  347;   Wulston  v.  Com.,  Conn.     356.       See     also,     Wilson     v, 

16   B.  Mon.    (Ky.)    15;     McDaniel  v.  Boerem,  15  John.   (X.  Y.)   286;   R.  v. 

State,    16   Miss.   401;   Com.   v.    Casey,  Mead,   2   B.   &   C.   608;      1    East's    P. 

11    Cush.     (Mass.)     417;     Burrell    v.  C.    353;      Waldele   v.    X.    Y.    Central 

State,    18  Tex.   713;   State  v.   Pall,   1  R.  R.  Co.,  61  How.  Pr.    (X.  Y.)   350. 

(320) 


Sec.  103.]  Dying  Declarations.  321 

not  alter  the  rules  of  evidence,  but  leaves  it  to  the  law  to  deter- 
mine what  a  witness,  when  confronted,  shall  be  allowed  to  state 
as  evidence.^  But  in  order  to  make  such  declarations  admissible, 
they  must  have  been  made  ichile  the  deceased  was  actually  in 
danger  of  death,  and  under  the  settled  conviction^  that  he  ivas  about 
to  die,  and  when  death  did  actually  ensue,*  and  the  question  as  to 
whether  these  elements  existed  is  to  be  determined  in  view  of  all 
the  circumstances,  as  the  nature  of  the  wound,  the  declarations  of 
the  deceased  in  that  regard,  and  the  sense  of  impending  death  in- 
cident to  his  condition.^  Where  the  victim  in  a  homicide  case  re- 
peatedly expresses  the  opinion  that  he  is  about  to  die  the  declara- 
tion made  at  the  time  is  admissible,  although  after  it  he  rallied 
and  used  language  which  indicated  that  he  was  then  not  without 
liope  of  recovery,  where  he  died  subsequently  after  an  interval  of 
several  hours  from  the  making  of  the  statement.  The  controlling 
question  is  whether  the  declarations  were  uttered  under  a  sense  of 
impending  dissolution  and  the  fact  that  death  did  not  immediately 
■ensue,  or  that  a  hope  of  recovery  was  subsequently  entertained, 
would  not  effect  their  admissibility.^  So,  where  a  deceased  person 
had  been  in  a  fight  and  subsequently  w^alked  home  and  there  be- 
came nauseated,  but  had  no  external  indication  of  injury,  and  had 
not  been  appraised  that  he  was  in  danger,  the  fact  that  he  tells  his 

'Walston  V.  Commonwealth,   16  B.  Smith  v.  State,  9  Humph.  (Tenn.)  9; 

Mon.    (Ky. )     15:   Campbell    v.    State,  Ix)gan    v.    State,    id.    24:      State    v. 

11  Ga.  353;  State  v.  Price,  6  La.  Center,  35  Vt.  378;  Bull's  Case,  14 
Ann.    G91;   Commonwealth    v.    Carey,  Gratt.    (Va.)   613.     Lord  Denman,  in 

12  Cush.  (Mass.)  246;  Burrell  v.  the  Sussex  Peerage  Case,  11  CI.  & 
State  18  Tex.  713;  People  v.  Glenn,  F.  108,  laid  down  the  rule  as  follows: 
10  Cal.  32 ;  State  v.  Nash,  7  Iowa,  "  With  regard  to  declarations  made 
347 ;  Woodsides  v.  State,  3  Miss.  by  persons  in-  extremis,  supposing  all 
•655.  reeessary     matters     concurred,     such 

*  United    States   v.    Woods,    Cranch  as  actual   danger,   death  following  it 

(U.   S.  C.  C.)    484;   United   States  v.  and  a  full  apprehension,  at  the  time, 

Veitch,   1   id.  115;     Dunn  v.  State,  2  of    the    danger    and    of    death,    such 

Pick.    (Mass.)   229;   People  v.  Lee,  17  declarations    can   be   received    in   evi- 

Cal.   76;      People  v.  Ybana,   id.    166;  dence,    and    all    these     things     must 

People     V.      Sanchez,    24     Cal.      17 ;  concur    to    render    such    declarations 

W^alston     V.     Commonwealth,     16     B.  admissible.       Such      evidence.      how- 

Mon.    (Ky.)    15;   Brown  v.   State,  32  ever,     ought    to     be     received      with 

Miss.  433 ;     People  v.  Knickerbocker,  caution   because   it   is   subject  to   re- 

1     Park.    (N.    Y. )    Cr.    302;      Mont-  cross-examination." 

gomery  v.  State,   11   Ohio,  424;   Rob-  ^Sullivan    v.    Cone,    93    Penn.    St. 

bins  v.  State,  8  Ohio  St.  131;   Brake-  284. 

field  V.  State,  1   Sneed    (Tenn.),  215;  "State  v.  Reed,  53  Kan.  767,  37  P- 

Kelson  v.    State,   7   Humph.    (Tenn.)  174,  42  Am.  St.  Rep.  322. 
542;      Lewis  v.   State,   17  Miss.   115; 

21  „       _. 


322 


Evidence. 


[Chap.  9 


family  he  is  going  to  die  would  not  render  his  declarations  at  the 
time  admissible,  as  that  is  insufficient  proof  to  show  that  he  was 
under  an  impression  of  almost  immediate  dissolution.^  Where  one 
is  shot  and  others  in  the  house  rush  to  his  assistance  immediately 
when  he  cries  "  Charlie  has  shot  me  to  death  "  and  dies  soon  after, 
this  explanation  is  admissible  as  part  of  the  res  gestae.^  It  is  not 
necessary  that  the  declarations  should  have  been  made  in  words  by 
the  deceased ;  it  is  sufficient  if  they  are  made  by  signs  in  response 
to  inquiries  put  by  a  person  present,  and  the  jury  will  give  such 
weight  thereto  as  they  deem  them  entitled  to  in  view  of  all  the  cir- 
cumstances. This  is  well  illustrated  by  a  Massachusetts  case.^  In 
that  case,  T.,  being  at  the  point  of  death,  and  conscious  of  her  con- 
dition, but  unable  to  speak  articulately,  in  consequence  of  wounds 
inflicted  upon  her  head,  was  asked  whether  it  was  C.  who  inflicted 
the  wounds,  and  if  so,  she  was  requested  to  squeeze  the  hand  of 


'State  V.  Johnson,  118  Mo.  491,  24 
S.  W.  229,  40  Am.  St.  Rep.  405. 

'State  V.  Arnold,  47  S.  C.  9,  58 
Am.  St.  Rep.  867,  24  S.  E.  926. 

Thus,  in  an  Alabama  case,  John- 
son V.  State,  17  Ala.  618,  the  de- 
ceased was  poisoned  on  Sunday,  and 
from  that  time  until  Tuesday  even- 
ing, when  she  died,  suffered  severely 
from  a  burning  pain  in  her  stomach 
and  bowels.  On  Sunday  night,  on 
Monday,  and  on  Tuesday,  just  before 
the  made  a  declaration,  she  used  such 
expressions  as,  "  I  cannot  stay  here, 
1  must  gO' — good  people,  I  am  gone," 
and  her  medical  attendant  consid- 
ered her  in  extremis  from  Tuesday 
morning  until  she  died.  Between  9 
o'clock  a.  m.  and  noon  on  Tuesday 
she  asked  her  medical  attendant  if  he 
could  help  her,  to  which  he  replied, 
he  thought  he  could.  It  was  held 
that  the  inquiry  and  reply,  taken  in 
connection  with  such  strong  evi- 
dences of  a  sense  of  impending  death, 
did  not  prove  anything  beyond  the 
hop6  of  present  ease  or  relief,  and 
were  insufficient  to  exclude  the  dec- 
laration of  the  deceased.  In  another 
case,  McDaniel  v.  State,  16  Miss.  401, 
on  the  day  on  which  the  mortal  blow 
was  given,  the  witness  said  to  the  de- 
ceased that  his  deposition  ought  to 
be  taken,  as,  in  the  opinion  of  the 
witness,   he  must   inevitably   die  be- 


fore morning.  The  deceased  replied 
that  he  thought  so  too,  and  after- 
wards exclaimed,  "  O  Lord,  I  shall 
die  soon!"  His  declarations  were  re- 
duced to  writing,  read  over  to  him 
twice,  and  signed  by  him.  On  the 
evening  previous  his  physician  had 
held  out  to  him  some  hopes  of  recov- 
ery, but  told  him  his  chance  was  bad. 
The  deceased  lived,  however,  some 
ten  days  after.  It  was  held  that  his 
declarations  were  admissible  as  dying 
declarations.  In  a  North  Carolina 
case,  State  v.  Pearee,  1  Jones  (N. 
C. )  L.  251,  the  deceased  was  cut  with 
a  knife  into  the  coats  of  his  stomach, 
was  very  weak  from  the  loss  of  blood, 
and  said  that  he  must  die,  and  did 
die,  two  daj's  afterwards,  of  the 
wound  he  had  received.  It  was  held 
that  his  account,  in  a  conversation  of 
short  duration,  as  to  the  manner  in 
which  the  conflict  began  and  was  con- 
tinued between  him  and  the  prisoner, 
was  admissible  as  dying  declarations, 
although  the  witness  could  not  say 
whether  the  opinion  expressed  by  the 
deceased  that  he  must  die  was  before 
or  after  the  narration  of  the  facts, 
there  being  .no  evidence  that  during 
the  time  of  this  short  conversation 
the  condition  of  the  deceased  was  ma- 
terially changed. 

°  Com.  V.  Casey,   11   Cush.    (Mass.) 
417. 


Sec.  103.]  Dying  Declaeations.  323 

the  person  asking  the  question.     Thereupon  she  squeezed  the  hand 
of  the  person  making  the  inquiry.     It  was  held  that  under  all  the 
circumstances  of  the  case  there  was  proper  evidence  against  C.  for 
the  consideration  of  the  jury,  they  being  the  sole  judges  of  its 
credibility,  and  of  the  effect  to  be  given  to  it.     But  declarations  so 
made  are  not  admissible,^"  unless  it  clearly  appears  that  the  de- 
ceased understood  the  inquiries  clearly  as  well  as  the  nature  of  his 
responses   thereto.      In   the   case   last   cited,    an   attorney,    being 
present  on  the  night  when  one  who  had  witnessed  a  murder  was 
dying,  propounded  questions  to  him  which  he  tried  to  answer,  but 
could  not,  and  his  attendant  friends  then  "  explained  the  questions 
to  him,  and  made  the  answers,  to  which  he  assented  only  by  nod- 
ding his  head."     The  statement  consisting  of  the  answers  thus 
made  was,  when  finished,  "  read  over  to  him  by  the  attorney  slowly 
and  distinctly,  and  he  signified  his  assent  thereto  by  nodding  his 
head;"   "he   spoke  but   a   few  words   afterwards,   and  had   fre- 
quently to  be  aroused ;  and  seemed,  while  the  statement  was  being 
read  to  him,  to  be  in  a  stupor."     It  was  held  that  this  was  not  ad- 
missible evidence,     ^r  are  such  declarations  admissible  if  the 
deceased  entertained  any,  even  slight,  hopes  of  recovery.^^     Thus, 
in  the  case  last  cited,  forty-eight  hours  after  the  shooting,  the  de- 
ceased clearly  thought  that  he  could  not  recover,  and  acted  as  if  he 
was  not  to  live  but  a  short  time,  though  the  surgeons,  to  soothe  him, 
assured  him  that  he  would  live,  and  one  of  them  thought  he  did 
entertain  some  hopes  of  his  recovery,  and  it  rather  appeared  that 
he  did  entertain  some  hopes.    His  declarations  were  not  admitted.'- 
In  a  California  case,'^  the  court  recognized  this  rule  and  applied 
it  in  a  case  where,  in  her  dying  statement,  the  deceased  said :  "  Be- 
lieving I  am  very  near  death,  and  realizing  that  /  may  not  recover, 
etc."     From  this  expression  the  court  held  that  it  was  clear  that 
the  deceased  entertained  slight  hopes  of  recovery,  and,  although 
she  in  fact  died  within  an  hour  after  making  the  statement,  re- 
jected it.     "  If  it  shall  appear,"  said  Ross,  J.,  usin-  the  language 
of  the  court  in  a  previous  case,'*  "  in  any  mode,  th^at  there  was^a 
hope  of  recovery,  however  faint  it  may  have  been,  still  lingering  in 
his  breast,     .     .     .     his  statement  cannot  be  received."'^     Butthe 

-McHugh  V.  State    31  Ala.  318.  -p       ,g  ^    Hodgdon,  55   Cal     7- 

State  V.  ^ash    7  Iowa,  287.  "People  v.   Sanchez,  24   Ca      04 

Cr    leTW'Y)   .'Sr'  ''''''  "^^"^'  ^-  ^^"^^"'  ^'^  Ka°.   189. 


324  Evidence.  [Chap.  9 

fact  that  the  deceased  does  not  state  in  his  declaration  that  he 
makes  it  in  immediate  expectation  of  death,  does  not  affect  its  ad- 
missibility, if  it  contains  nothing  to  show  that  he  entertained  any 
hope  of  recovery,  and  it  reasonably  appears  that  he  did  not  enter- 
tain any  such  hope.^^ 

Sec.  104.  To  what  Matters  Admissible. 

Another  important  qualification  of  the  rule  is  to  be  borne  in 
mind,  and  that  is,  tJiat  such  declarations  are  only  admissible  as 
to  matters  about  which  the  deceased  would  have  been  competent 
to  testify,  if  sworn  to  in  the  cause,  and,  consequently,  such  dec- 
larations should  relate  to  facts,  and  not  to  the  opinion  or  belief 
of  the  deceased.^'  But  the  fact  that  the  examination  was  not  con- 
ducted in  the  manner  in  which  it  would  have  been  conducted  in 
court  does  not  affect  the  admissibility  of  the  statement,  but  may 
affect  its  credibility.^^ 

Sec.  105.  Declarations  must  be  complete. 

Another  important  qualification  to  the  rule  is,  that  the  declar- 
ation 7nust  be  complete  in  itself,  and  if  it  appears  that  he  deceased 
intended  to  qualify  his  statement,  but  was  prevented  from  doing 
so  from  any  cause,  it  will  not  be  admissible.^  So  the  declarations 
are  not  admissible  when  clearly  fragmentary  or  when  it  does  not 
appear  that  the  declarant  stated  who  it  was  had  caused  his  injury 
and  where  the  evidence  of  the  declarations  is  incomplete.^  When 
the  declaration  has  been  committed  to  writing  at  the  time  it  was 
made,  it  must  be  produced  oi*  accounted  for,  and  neither  a  copy 

"  State   V.    Wilson,    24    Kan.    189;  was   not  admissible,  but  the  remain- 

36  Am.  Rep.   257.     And   in  this  case  der   of   such   declarations    are   admis- 

such  declarations  were  held   admissi-  sible    if   otherwise   not   objectionable, 

ble,   although   the   deceased   had    pre-  Jones  v.   State,  71   Ind.  66;   Brother- 

viously  given  his  testimonj'  upon  the  ton    v.    People,    75    N.    Y.    139.        In 

preliminary    examination    of    the    re-  State  v.  Wood.  53  Vt.  560,  to  a  ques- 

spondent.        Dumas   v.   State.   62  Ga.  tion,  "  Had  she  threatened  to  injure 

58.  you  before?"  the  deceased  responded, 

"  McPherson  v.  State,  22  Ga.  478 ;  "  Yes,  she  had  threatened  a  tliousand 

Whitley  v.   State,  38   Ga.   50;      R.  v.  times   to   kill   me,   before,"   and   such 

Sellars,  Car.,  C.   &   L.   233.     In  Mer-  statement   was   held    inadmissible. 

rilLv.  State,  58  Miss.  65,  it  was  held  '*  Com.  v.  Vass,  3  Leigh  (Va. )  786; 

that  the  portion  of  a  declaiation  of  Rex  v.  Fagent,  7  C.  &  P.  238. 

a   deceased    person    which    related    to  '  Com.  v.  Vass,  ante, 

threats  made  by  the  respondent   tico  ^  State  v.  Johnson.  118  Mo.  491,  24 

weeks  before  the  injury  was  inflicted,  S.  W.  229,  40  Am.  St.  Rep.  405. 


Sec.  106.]  Dying  Declakations.  325 

nor  parol  evidence  can  in  the  first  instance  be  admitted  to  supply 
the  omission.^  But  where  several  declarations  were  made,  only 
one  of  which  has  been  committed  to  writing,  all  may  be  proved  ;* 
and  if  the  deposition  of  the  deceased  has  been  taken  under  the 
statute,  but  for  any  cause  is  inadmissible  as  such,  it  is  still,  if 
made  in  extremis,  admissible  as  a  dying  declaration.^  Such  dec- 
larations are  admissible  as  well  for  as  against  the  respondent.^ 
But  in  Illinois^  it  is  held  that  such  declarations,  not  a  part  of  the 
res  gestae,  are  not  admissible  in  exculpation  of  the  accused ;  but 
such  a  doctrine  would  be  very  unjust,^  and  it  is  believed  that  the 
Illinois  cases  cannot  really  be  said  to  go  further  than  to  hold 
what  has  already  been  stated  to  be  the  rule,  that  such  declarations 
are  not  admissible  when  they  relate  to  opinions  rather  than  facts, 
as  was  the  case  in  both  of  the  cases  cited  from  that  State. 

Sec.    io6.  Considerations  which  should   Control   as   to  Admis- 
sion of. 

It  is  the  universal  judgment  of  the  courts,  text-writers,  and 
all  thinking  men,  that  this  class  of  evidence  is  to  be  received 
with  great  caution,  and,  except  where  the  circumstances  were 
such  as  to  render  it  next  to  impossible  that  the  deceased  could 
be  mistaken  as  to  the  criminating  facts  stated,  juries  should  scan 
the  statement  with  great  care,  especially  where  there  is  evidence 
tending  to  show  that  the  d^eceased  was  mistaken,  for  it  is  to  be 
remembered  that  while  the  deceased  made  the  statement  under 
the  apprehension  of  certain  death,  yet  the  respondent  has  not 
had  the  privilege  of  cross-examining  the  witness,  or  testing  the 
real  foundation  of  the  deceased's  belief  as  to  his  guilt,  and  that 
where  the  witness  has  not  a  deep  sense  of  accountability  to  his 
Maker,  and  an  enlightened  conscience,  the  passion  of  anger,  and 
feelings  of  revenge,  or,  in  the  case  of  mutual  conflict,  the  natural 
desire  of  screening  his  own  misconduct,  may  affect  the  truth  and 
accuracy  of  his  statements,  and  give  a  color  to  the  transaction 
which,  had  further  investigation  been  attainable,  might  have 
been  proved  to  be  incorrect.     Moreover,  the  particulars  of  the 

« Taylor  on  Ev.  §  506.  150:   People  v.  Knapp,  26  Mich.  112; 

*Kirbv  V.   State,  8  Tex.   App.   1.  Moore  v.  State.  12  Ala.  274. 

"Rex'v.    Woodcock,    1    Lea.    C.    C.  '^  Maeck    v.    People,    100    111.    242; 

602.  Adams  v.  People.  47  id.  376. 

"  Rex    V.     Scaife,    2    Lewis    C.    C.  °  People  v.  Knapp,  ante. 


326  Evidence.  [Chap.  0 

violence  to  which  the  deceased  has  spoken  are  likely  to  have  oc- 
curred under  circumstances  of  confusion  and  surprise,  calculated 
to  prevent  their  being  accurately  observed,  and  leading  both  to 
mistakes  as  to  the  identity  of  persons,  and  to  the  omission  of  facts 
essentially  important  to  the  completeness  and  truth  of  the  nar- 
rative.^ 

'Jackson   v.  Kniffen,  2   John.    (N.  serrations  on  the  great  caution  to  be 

Y. )  35,  36,  per  Livingston,  J.;  K.  v.  observed  in  the  use  of  this  kind   of 

Ashton,  2  Lew.  C.  C.  147,  per  Aldek-  evidence,  in  2   Poth.  Obi.  255    (293)  ; 

SON,  B.       Secj  also,  Mr.  Evans'  ob-  2  St.  Ev.  367,  and  1  Ph.  Ev,  292. 


CHAPTER  X. 
Declarations  by  Deceased  Persons  Against  Interest. 

Section  107.  General  rule. 

108.  Kinds  of  declarations  admitted. 

109.  Conditions  precedent  to  the  admission  of. 

110.  Entries  in  private  books,  etc. 

111.  Admissibility  as  against  surety  of  declarations  of  principal. 

112.  Illustrations  of  the  application  of  this  exception. 

113.  Person  making,  must  be  dead. 

114.  Admissibility    of    collateral    matters    in   declaration    which    are 

not  against  interest  of  declarant. 

115.  Distinctions    between    rules    as   to   entries   made   by   persons   in 

course  of  business  and  as  to  declarations  of  deceased  persons. 

Sec.  107.  General  Rule. 

An  exception  is  also  made  to  the  rule  in  reference  to  the  ad- 
missibility of  hearsay  evidence  in  favor  of  declarations  and  entries 
made  by  deceased  persons  against  their  proprietary  or  pecuniary 
interest,  unless  it  can  be  shown  that  they  were  made  with  a  sin- 
ister motive.^  This  exception  is  founded  upon  the  presumption 
that,  where  declarations  are  made  under  these  circumstances,  they 
are  entitled  to  credit,  because  it  is  supposed  that  a  person's  re- 
gard for  his  own  interest  is  such  as  to  operate  as  a  guaranty 
against  his  prejudicing  himself  by  any  erroneous  statement,  and 
that  he  would  not  be  likely  fraudulently  to  make  a  statement  which 
would  be  prejudicial  thereto.^ 

Sec.  108.  Kinds  of  Declarations  Admitted. 

Verbal  declarations  as  well  as  written  are  admissible  when  they 
are  clearly  against  the  interest  of  the  declarant,  although,  as  a 

'Taylor   on    Ev.    §   464;      Short   v.  Thomas     v.     Degraffenreid,     17     Ala. 

Lee,   2   Jac.   &   W.   464;      Higham   v.  602;   Smith   v.   Maine,   25   Barb.    (IN. 

Eidgway,      10     East,      109 ;       Sussex  Y. )   33  ;   Harris  v.  Clark,  3  N.  Y.  93  ; 

Peerage   Case,    11   CI.   &    F.    103;   St.  Toat  v.  Finch,  1  Taunt.   141;     White 

Clair's   Heirs   v.   Shale,   20   Penn.   St.  v.  Chonteau,   10  Barb.    (N".  Y.)    202; 

105;       Highley    v.    Bidwell,    9    Conn.  Middleton  v.  Melton,  10  B.  &  C.  317; 

447;      Pike   v.    Hays,    14    N.    H.    19;  Reece  v.  Robinson,   15  East,  34. 
Smith  V.   Powers,  15  id.   546;   Pearce  ^Phillips  on  Ev.  304. 

V.    Jenkins,    10    Ired.     (N.    C.)     355; 

(327) 


328  Evidence.  [Chap.  10 

matter  of  course,  they  are  entitled  to  less  weight  than  thos«  which 
are  in  writing,  because  they  are  made  with  less  deliberation  and 
are  more  liable  to  be  erroneousdy  remembered.^  In  a  Xorth  Caro- 
lina case,''  it  was  held  that  the  declarations  of  a  deceased  person 
against  his  interest,  such  as  a  verbal  statement  that  he  was  at  a 
given  time  indebted  to  another,  were  held  admissible,  and  in  the 
cases  cited  in  the  previous  note,  such  verbal  declarations  were  ad- 
mitted without  objections.  In  an  English  case^  tlie  question  as;  to 
the  admissibility  of  such  evidence  was  much  discussed,  but  was 
not  decided ;  but  in  many  cases  in  our  courts  such  verbal  declar- 
ations, where  clearly  against  the  interest  of  the  declarant,  have, 
been  admitted,®  and,  subject  to  the  qualifications  before  stated, 
there  would  seem  to  be  no  good  ground  of  objection  thereto. 

Sec.  109.  Conditions  Precedent  to  the  Admission  of. 

In  order  to  render  declarations  against  interest  admissible — 
except  in  suits  to.  which  the  declarant  is  a  party — it  must  first 
he  shown  that  he  is  dead;^  and  the  exception  does  not  apply,  even 
though  the  declarant  has  absconded  or  his  whereabouts  are  un- 
known, or  from  any  cause  the  party  is  unable  to  produce  him.^ 

^  Pearce   v.    Jackson,    10    Ired.    (N.  the  plaintiff  insisted  that  he  was  the 

C.)   355;  Ivat  v.  Finch,  ante;  Sussex  tenant  of  one  John   Brown,   and   not 

Peerage      Case,      ante;        Davies     v.  of   the   defendant;      and  to  establish 

Pierce.   2  T.  R.   53;      Strode  v.   Win-  this  fact,  showed  that  he  had  always 

Chester,    1    Dick.    397;      Hallaway    v.  paid  the  rent  to  John  Brown.       The 

Rakes,  cited  2  T.  R.  55.  defendant,  to  show  that  John  Brown 

*  Pearce   v.    Jackson,    ante.  only   acted   as   his   agent,  offered  the 

^Furdson  v.  Cloggett,   10  M.  &  W.  account    of     payments     rendered     by 

572.  John   Brown   to   him.        It   was   held 

^Arthur  v.  Gale,  38  Ala.  259;  that,  John  being  alive,  he  should  be 
Kneeland  v.  Wilson,  12  Cal.  241;  called,  and  the  account  was  rejected. 
Bollo  V.  Navarro,  33  Cal.  459;  Settle  Warner  v.  Price,  3  Wend.  (N.  Y.) 
V.  Alison,  8  Ga.  301;  W^aggoner  v.  397;  Cutbush  v.  Gilbert,  4  S.  &  R. 
Cooley,  17  111.  239;  Renwick  v.  Ren-  (Penn.)  551;  Cluggage  v.  Swan,  4 
wick,  9  Rich.  (S.  C.)  50;  Cavin  v.  Binn.  (Penn.)  150. 
Smith,  24  Mo.  22 ;  Jacks  v.  Hallow,  '  Stephen  v.  Gwenap,  1  M.  &  R. 
14  B.  Mon.  (Ky.)  133;  Keener  v.  120;  Brewster  v.  Doane,  2  Hill  (N. 
Kauffman,  16  Md.  296;  Dickerson  Y.),  537;  Moore  v.  Andrews,  5  Port. 
V.  Chrisman,  28  Mo.  134;  Morrill  v.  (Ala.)  107.  But  in  Pennsylvania 
Foster,  33  N.  H.  379;  Van  Blarcom  absence  from  the  State  has  been  held 
V.  Kip,  26  N.  J.  L.  351;  Denton  v.  equivalent  to  death.  Atton  v.  Berg- 
Perry,  5  Vt.  382.  haus.  8  Watts  (Penn.),  77;  Grouse 
1  Phillips  v.  Cole,  10  Ad.  &  El.  106;  v.  Miller,  10  S.  &  R.  (Penn.)  155. 
Smith  V.  Whittingham,  6  C.  &  P.  78.  And  in  Massachusetts  insanity  ha& 
In  Spangs  v.  Brown,  9  B.  &  C.  935,  been  held  to  be  equivalent  to  death, 
an  action  for  trover  was  brought  for  Union  Bank  v.  Knapp,  3  Pick» 
goods  which  had  been  distrained,  and  (Mass.)     30;      Holbrook    v.     Gar,    ft 


Sec.  109.]     Declarations  Against  Interest. 


329 


It  was  at  one  time  supposed  that  it  must  also  appear  that  the 
declarant  had  a  competent  or  -peculiar  knowledge  of  the  matters 
to  which  the  declaration  related  f  but  the  later  and  better  doc- 
trine seems  to  be  that  it  is  not  necessari/  thut  the  declarant  should 
have  made  the  statement  as  of  his  own.  knowledge,  but  that  the 
absence  of  such  knowledge  affects  the  weight  and  not  the  admissi- 
bility of  the  evidence.* 

It  is  also  indispensable  that  the  statement  or  entry  should  be 
a-gainst  the  po'opnetary  of  pecuniary  interest  of  the  declarant.^  It 
is  not  enough  that  the  statements  affect  the  declarant  injuriously; 
they  must  also  affect  his  proprietary  or  pecumary  interest,  or  they 
are  not  admissible.  Thus,  in  the  Sussex  Peerage  Case/  in  order 
to  prove  the  marriage  of  the  Dnke  of  Sussex  and  Lady  Augusta 
Murray,  statements  made  by  the  clergj^man  who  had  married  them 
at  Rome,  since  deceased,  were  offered  on  the  ground  that  they  were 
clearly  against  his  interest,  because  they  related  to  an  act  which 


Cush.  (Mass.)  216.  And  in  South 
Carolina  absence  from  the  ^tate 
eeems  to  be  sufficient  to  let  in  proof 
of  this  class  on  the  handwriting  be- 
ing proved.  Elms  v.  Chevis,  2  Mc- 
Cord   (S.  C),  349. 

'Sussex  Peerage  Case,  ante;  Bar- 
ker V.  Kay,  2  Russ.  76;  Higham  v. 
Ridgway,  10  East,  122;  Short  v. 
Lee,  2  J.  &  W.  475. 

*  Crease  v.  Barrett,  1  C,  M.  &  R. 
925. 

"Glynn  v.  Bank  of  England,  2 
Ves.  Sr.  38 :  Roe  v.  Rawlings,  7  East, 
290:  Gleadow  v.  Atkin,  1  C.  &  M. 
424;  Berkley  Peerage  Case,  ante; 
Sussex  Peerage  Case,  ante ;  Daves  v. 
Lloyd.  1  C.  &  K.  276.  It  is  not 
enough  that  the  deceased  was  in  a 
situation  to  know  the  facts,  and  if 
his  proprietary  or  pecuniary  inter- 
ests are  not  affected,  his  entries  or 
declarations  are  not  admissible. 
Thus,  in  a'  Connecticut  case,  Abel  v. 
Fitch.  20  Conn.  90,  in  which,  in  a 
controversy  relative  to  the  right  of 
the  defendant  to  maintain  a  dam  at 
a  certain  height,  the  defendant 
offered  in  evidence  a  letter  from  one 
Hopkins  (then  deceased),  who,  at 
the  time  when  the  dam  was  raised, 
was  in  the  defendant's  employ  as  a 
miller,  in  which  he  stated  the  facts 
relative  to  the  raising  of  the  dam, 
as    he   understood    them.     The    court 


rejected  the  e\idence,  and  upon 
appeal  this  ruling  was  sustained, 
Elllsworth,  J.,  sajing:  "  It  is 
nothing  more  than  the  opinion  of  a 
deceased  man,  given  three  years 
after  this  dam  was  built,  as  to  what 
was  its  height,  he  then  being  miller. 
*_  *  *  Doubtless  entries  and  admis- 
sions of  deceased  people  are  in  some 
cases  admissible,  but  the  evidence 
now  offered  does  not  belong  to  that 
class.  Entries  by  persons,  since 
deceased,  having  full  and  peculiar 
rneans  of  knowledge,  made  at  the 
time,  in  the  regular  course  of  busi- 
ness, in  the  usual  and  proper  place 
and  manner,  especially  if  in  the  dis- 
charge of  one's  duty,  are  admissible 
as  a  part  of  the  res  gestae.  So  ad- 
missions of  a  deceased  man,  made 
against  his  interest,  or  by  an  agent, 
constituting  or  qualifying  the  trans- 
action inquired  after,  may  go  to  the 
jury.  But  the  opinion  of  Hopkins 
has  none  of  these  qualities,  nor  is  it 
accompanied  with  any  of  the  safe- 
guards of  such  evidence.  It  does 
not  differ  from  the  opinion  or  re- 
mark of  'any  other  person  deceased, 
who  was  acquainted  with  the  subject- 
matter  in  controversy." 

'Sussex  Peerage  Case,  11  CI.  &  F. 
110,  overruling  Standen  v.  Standen, 
Peake,  45. 


330  Evidence.  [Chap.  10 

rendered  Mm  liable  to  prosecution,  while  living,  or  which,  at  least, 
lie  believed  to  be  illegal.  This  evidence  was  rejected,  Lord  Lyxd- 
HUEST  saving:  "It  is  not  true  that  the  declarations  of  deceased 
persons  are  in  all  circumstances  receivable  in  evidence,  when  in 
some  way  or  other  thev  might  injnrionslv  affect  the  interest  of 
the  party  making  them.  Xor  is  it  true  that,  because,  while  living, 
a  party  would  be  excused  from  answering  to  cerrtain  facts,  his 
declarations  as  to  those  facts  become  evidence  after  his  death. 
These  are  not  correlative,  nor  corresponding  propositions."  Lord 
Eeougham  also  said :  "  To  say,  if  a  man  should  confess  a  felony 
for  which  he  would  be  liable  to  prosecution,  that,  therefore,  the 
instant  the  grave  closes  over  him,  all  that  Avas  said  by  him  is  to 
be  taken  as  evidence  in  every  action  and  prosecution  against  an- 
other person,  is  one  of  the  most  monstrous  and  untenable  prop- 
ositions that  can  be  advanced."^  The  amount  of  pecuniary  in- 
terest is  not  important;  it  is  sufficient  if  at  the  time  the  declara- 
tion or  entry  was  made,  it  charged  the  person  making  it  to  any 
extent.^ 

On  the  issu6  whether  a  conveyance  paid  for  by  a  parent  and 
taken  in  the  name  of  a  child  is  an  advancement  or  a  gift  the 
declarations  of  the  parent  made  prior  to  or  at  the  time  of  the 
transfer  are  admissible.  But  declarations  made  subsequent  to 
the  transfer  and  not  part  of  the  res  gestae  are  not  admissible  as 
■declarations  against  interest,  as,  whether  the  transaction  was  a 
gift  or  an  advancement,  in  either  case  the  donor  lost  all  interest 
in  the  projDerty  and  the  declarations  cannot  be  said  to  be  against 
interest.^  The  statement  of  a  deceased  employee  as  to  his  part 
in  starting  a  fire  may  be  against  his  pecuniary  interest  when  it 
furnishes  the  basis  for  an  action  of  negligence  against  him.-^**  The 
declarations  of  a  deceased  person  to  the  effect  that  a  certain  bank 
account  in  his  name  as  trustee  was  for  the  benefit  of  another  are 
admissible.^^    The  plaintiff  in  an  action  of  ejectment  may  testify 

^  But    see    Coleman    v.     Fraser,    4  'Ellis  v.   Newell,   120  Iowa,  71,  94 

Hich.    (S   C.)     152,   where   an    admis-  N.  W.  463. 

sion  made  by  a  clerk  of  the  defendant  ^°  Halvorsen  v.  Moon  &  Kerr  Luin- 

that  he  had  stolen  a  certain   sum  of  ber   Co.,  87   Minn.    18,   91   N.   W.  28, 

money,  was  held  evidence  against  his  94  Am.   St.  Rep.  669,  and  note,  page 

principal,  because  it  exposed  the  clerk  672. 

to    prosecution.      See,    also.    Click   v.  "  Connecticut   River    Sav.    Bank   v. 

Hamilton,  7  id.  66.  Albee's  Estate.  64  Vt.  571.  25  A.  487, 

»R.  V.  Worth,  4  Q.  B.  132.  33  Am.  St.  Rep.  944. 


Sec.  110.]  Declarations  Against  Interest.  331 

to  declarations  made  to  her  by  a  deceased  person  who  formerly 
occupied  tlie  land  in  question  to  tlie  effect  that  the  deceased  per- 
son occupied  as  a  tenant  of  the  plaintiff.  This  evidence  was  ad- 
mitted notwithstanding  the  deceased  tenant  was  not  a  party  to  the 
action  under  the  rule  that  siidi  declarations  are  admissible  for  or 
against  strangers  as  well  as  privies.  "" 

"  When  the  declaration  contains  that  which  is  against  the  in- 
terest of  the  declarant,  and  also  that  which  is  in  his  favor,  its  ad- 
missibilit)^  has  been  doubted.  The  settled  rule  seems,  however, 
now  to  be  that  the  statements  in  the  declaration  should  be  balanced, 
and,  if  those  in  favor  of  interest  are  equal  to  or  preponderate  over 
those  that  are  against  interest,  the  declaration  should  not  be  admit- 
ted;  but  that  if  those  against  interest  preponderate  over  those 
that  are  in  favor  of  interest,  the  declaration  is  admissible.  But 
in  any  case  where  the  declaration  is  admissible,  it  is  admissible 
as  proof  of  all  the  facts  therein  stated,  both  the  main  fact  and 
any  collateral  fact  connected  therewith."  So  a  sheriff's  mem- 
oranda to  the  effect  that  he  has  sold  land  under  a  tax  execution 
is  a  declaration  against  his  interest  as  laying  himself  open  to 
all  the  consequences  of  a  possible  illegal  sale,  and  so  the  statement 
in  it  that  an  execution  issued  on  it  on  which  he  made  the  sale  is 
admissible  as  part  of  the  statement.^^ 

Sec.  no.  Entries  in  Private  Books,  etc. 

The  cases  in  which  this  exception  is  most  frequently  applied, 
are  ivhere  entries  have  been  made  by  a  deceased  person  in  the 
due  course  of  business;  uh  his  private  books,  of  monetj  or  property 
received  by  him  from  or  for  another  person^  and  such  entries  are 
admissible  to  prove  the  facts,  even  though  no  privity  exists  be- 
tween the  deceased  and  the  person  against  whom  the  evidence  is 
tendered}    But  an  account  book  made  by  a  deceased  party  is  not 

"McLeod  V.  Swain,  87  Ga.   156,  13  v.  Lechmere,   1   Atk.  453;    Harper  v. 

S   E.  315,  27  Am.  St.  Rep.  229.  Brooke,  Woodeson's  I^ct.  332 ;    Short 

"  Massee-Feltoii  Lumber  Co.  v.  Sir-  v.  Lee,  2  J.  &  W.  464.     In  Lee  v.  Va. 

mans    (Ga.,  1905).  50  S.  E.  92.  &   Maryland   Bridge   Co.,    18    W.   Va. 

^  Barry    v.     Babbington,    4    T.     R.  299,   this   exception   was   recognized. 
614;      Doe    v.    Tavlor^   0    Bing.    562;  =  Whitmarsh    v.   Genge.   3   M.   &    R. 

Bree   v.   Beek,    1    Younge,    225:      Ed-  42;   Middleton  v.  Milton,  10  B.  &  C. 

wards  V.  Rees,  7  C.  &  P.  340 ;  Rogers  317.       This    case    overrules    Gass    v. 

V     Allen,    1    Camp.    309;      W^Tine   v.  Wattington,  3   B.  &  B.   138;      Leo  v. 

Tyrwhitt,  4  B.  &  Aid.  376;   Manning  Va.   &  Maryland  Bridge   Co.,   ante. 


332  Evidence.  [Cliap.  10 

admissible  to  prove  items  not  original  entries  which  are  evidently 
summaries  or  copied  from  another  ledger,^  or  to  prove  a  claim 
against  another  when  not  made  in  the  usual  course  of  business  but 
some  years  after  the  transaction  had  occurred.*  In  many  cases  such 
entries  may  be  admissible,  although  the  person  making  them  is 
still  living,  where  they  properly  are  a  part  of  the  res  gestae. 

Sec.    III.  Admissibility   as   against   Surety  of   Declarations   of 
Principal. 

In  this  country  many  of  the  courts  have  adopted  the  idea  that 
the  declarations  of  the  principal  may  bind  in  the  same  sense  that 
those  of  an  agent  would,  both  being  within  the  scope  of  their 
business.  These  words  or  declarations  then  are  the  acts  or  parts 
of  acts;  and  it  is  for  the  acts  of  the  principal  that  the  surety  is 
bound.  In  such  a  view,  the  principal  need  not  be  dead.  You 
prove  his  entries  or  declarations  the  same  as  you  do  his  other  acts 
by  a  third  person ;  and  that  without  reference  to  the  fact  that  he 
can  be  produced  as  a  witness.  In  a  Pennsylvania  case^  the  defend- 
ant was  surety  for  the  good  behavior  of  Cobbett,  the  editor.  It 
was  shown  that  a  libel  (a  volume  of  ''  Porcupine  ")  was  paid  for 
to  Cobbett's  common  clerk,  and  this  was  admitted  as  the  act  of 
Cobbett.  This  case  shows  the  principle.  Here  was  the  act  of 
Cobbett  by  his  agent.  On  this  distinction  the  entries  of  a  teller 
of  a  bank  in  a  book  kept  in  the  bank,  by  which  he  daily  stated  his 

'  Harmon  v.  Decker,  41  Or.  587,  68  of  the  res  gestae.       In  another  case, 

Pac.   11,   1111,  93  Am.  St.  Rep.  748.  Middleton  v.  Milton,   10  B.  &  C.  317, 

*  Rowan  v.   Chenoweth,   49   W.   Va.  a   collector's    private   book   bv   which 

247,   38   S.   E.   544,   87   Am.    St.   Rep.  he  collected  and  ticked  off  the  siung 

796.  paid,   was    offered    in   evidence.     Sev- 

Thus,  in  an  Eno^Hsh  case,  Whit-  eral  receipts  given  by  the  collector  to 
marsh  v.  Genge,  3  M.  &  R.  42,  in  an  private  persons,  for  ta.xes  paid  by 
action  upon  a  bond  given  for  the  them,  were  produced,  and  the  whole 
fidelity  of  a  clerk,  to  the  plaintiffs,  ciuly  proved,  the  private  books  being 
in  paying  money  and  all  his  dues,  it  seen  with  his  family  at  the  time  of 
was  shown  that  it  was  his  duty  to  his  death.  All  the  entries  and  re- 
keep  their  books.  He  kept  the  books  ceipts  were  shown  to  have  been  in 
and  entered  therein  the  moneys  re-  the  usual  line  of  business  of  the  de- 
ceived by  him,  and  died.  In  admit-  ceased  in  his  office  of  collector,  and 
tmg  the  entries  as  evidence  against  the  Avhole  were  received  against  his 
the  sureties  vipon  the  bond,  Lord  surety,  on  the  ground  that  the  en- 
Texterden  laid  great  stress  upon  the  tries  were  made  by  a  deceased  person 
circumstance  that  the  clerk  was  dead.  against  his  interest.  Plaxton  v. 
But,  inasmuch  as  these  entries  were  Dare,  10  B.  &  C.  17. 
made  by  the  clerk  in  the  line  and  as  ^  Respublica  v.  Davis,  3  Yeates- 
a  part  of  his  duty,  it  is  clear  that  (Penn.),  128. 
they  were  also  admissible  as  a   part 


Sec.  Ill]  Declakations  Against  Interest.  333 

account,  as  teller,  were  received  against  him,  to  show  his  default 
in  a  suit  against  his  surety.  But  his  admissions,  made  in  writing, 
after  he  was  dismissed  from  his  office,  were  denied  by  several  of 
the  judges.  The  former  were  likened  by  Cheves,  J.,  who  deliv- 
ered the  opinion  of  the  court,  to  the  declarations  of  an  agent 
within  the  scope  of  his  authority,  which  are  a  part  of  the  res 
gestae;  the  latter  to  an  agent's  admission  after  he  had  ceased  to 
act  for  his  principal.^  The  court  did  not  stop  to  inquire  whether 
the  teller  was  dead  or  alive.  On  the  same  principle,  a  jailer's 
receipt  for  a  prisoner  was  held  receivable  against  his  surety.^  So, 
a  statement  of  an  account  with  the  bank  by  a  cashier,  explaining 
its  receipts  and  defaults,  made  before  his  office  terminated ;  for 
the  sureties  "  were  bound,  not  for  themselves,  but  for  him;  and 
his  acts  and  sayings  of  course  bound  them,  and  they  must  stand 
or  fall  by  them,"*  So,  the  return  of  a  sheriff  that  a  fi.  fa.  is  satis- 
fied, is  a  declaration  concluding  his  sureties  in  an  action  on  their 
bond.^  And  so,  on  the  same  principle,  the  inventory  of  an  ad-  • 
ministrator  is  evidence  in  an  action  against  his  sureties.^  Several 
of  these  declarations  are  obviously  parts  of  the  transactions  for 
which  the  sureties  are  bound ;  and  that  is  the  true  point  of  in- 
quiry. They  are  like  a  part  payment  by  the  principal  on  a  prom- 
issory note,  w^iicli  lias  been  held  to  take  it  out  of  the  Statute  of 
Limitations,  or  to  repel  the  presumptive  bar  of  twenty  years'  de- 
lay in  respect  to  the  surety,  who  is  jointly  bound  to  pay.^  The 
surety  is  bound  that  he  shall  do  the  very  act  which  he  is  perform- 
ing, to  wit,  payment,  as  the  sureties  were  that  the  cashier  should 
do  his  duty  by  passing  accounts  at  the  bank.  Whereas,  the  mere 
acknowledgment  of  the  principal  with  whom  a  surety  is  bound 
in  a  promissory  note,  has  been  held  not  to  affect  the  latter ;  for 
such  acknowledgment  cannot  be  placed  within  the  scope  of  the 
suretyship.  The  case  of  joint  debtors,  where  both  are  principals, 
stands  on  a  different  footing;  for  they  bind  each  other  in  respect 
to  their  joint  interest,  as  quasi  partners.^     But  after  the  lapse  of 

^  State   Bank   v.   Johnson,    1   Const.  "  Chairman,    &c..    v.    Harramond,    4 

Eep.   (S.  C.)   404.  Hawks  (N.  C),  339. 

^Barnard   v.   Com.,    4    Litt.    (Ky. )  ^  Hunt      v.      Bridgman,      2      Pick., 

148.  (Mass.)   584. 

*  Pendleton   v.    Bank   of    Kentucky,  ^  Baker  v.   Briggs,  8  Pick.    (Mass.) 

1  Mon.   (Ky. )   171.  122;   Longenecker    v.    Hyde,    6    Binn. 

=^  Governor   v.    Twitty,    1    Dev.    (N.  (Penn.)    1. 
C.)    153. 


33i 


Evidence. 


[Chap.  10 


six  years,  the  admission  of  the  principal  cannot  be  received  against 
the  snrety,  even  to  take  the  case  out  of  the  Statute  of  Limita- 
tions.^ 

But  there  is  a  class  of  cases  in  our  courts  in  vhich  the  admis- 
sions, declarations  or  acknowledgments  of  the  principal,  in  this 
respect,  are  held  to  be  admissible.  Thus,  in  an  early  Pennsylvania 
case^"  the  defendant  had  written  to  the  plaintiff,  offering  to  stand 
jointly  bound  with  one  Wilson  for  all  contracts  he  might  make. 
Subsequently  Wilson  sent  a  letter  to  the  defendant,  giving  a  state- 
ment of  what  he  had  purchased  under  the  guaranty,  and  the  plain- 
tiff relied  upon  this  letter  to  prove  the  contract  and  fix  the  amount, 
and  it  Avas  admitted  as  evidence."  But  in  an  Iowa  case^^  a  letter 
written  by  the  jDrincipal  in  a  written  obligation  containing  a  state- 
ment of  admissions  made  by  the  surety,  was  held  not  to  be  ad- 
missible in  an  action  against  the  surety. 


*  ]Meade  v.  McDowell,  5  Binn. 
(Peiin.)    195. 

And  where  the  plaintiff  took  one 
Burnett  in  as  a  partner  in  the  busi- 
ness of  tanning,  and  the  defendants 
covenanted  with  the  plaintiff  that 
Burnett  should  faithfully  discharge 
his  duty,  as  such  partner,  for  two 
years  from  the  11th  of  Jannuary, 
1833,  in  an  action  on  the  covenant, 
assigning  breaches  in  1823,  admis- 
sions made  by  Burnett  in  1825,  that 
certain  books  offered  by  the  plaintiff 
in  evidence  were  the  books  of  the 
firm,  were  held  inadmissible  against 
his  sureties.  "  True,"  says  Hodmax, 
J.,  delivering  the  opinion,  "  that 
Avhile  the  principal  is  acting,  his  dec- 
larations may  be  so  interwoven  with 
his  acts  as  to  stand  in  direct  connec- 
tion with  them,  and  form  a  part  of 
the  7'es  gestae;  but  when  he  ceases 
to  act,  his  subsequent  declarations 
have  no  direct  connection  with  his 
preceding  acts,  so  as  to  bind  his  sure- 
ties." Hotchkiss  v.  Lyon,  2  Blackf. 
(Ind.)  222.  So,  to '  implicate  the 
surety  of  a  sheriff,  his  acknowledg- 
ment that  he  had  collected  money 
was  denied  as  evidence,  though  it  was 
said  by  Holmax,  J.,  "  If  this  had 
been  while  he  was  officially  acting  in 
relation  to  the  receipt  of  the  money, 
the  statement  would  have  formed  a 
part  of  the  res  gestae.  But  declara- 
tions  at   any    subsequent    period    are 


inadmissible.  It  is  his  acts,  and  not 
his  admissions  or  declarations,  for 
which  the  sureties  are  bound."  Shel- 
by V.  Governor,  2  Blackf.  ( Ind. )  289 ; 
Beal  V.  Beck,  3  H.  &  McH.  (Md.) 
242.  In  Evans  v.  Beattie,  Evans  v. 
Beattie,  5  Esp.  27,  in  an  action 
against  a  guarantor  of  the  sale  of 
goods.  Lord  Ellexborough,  C.  J., 
rejected  evidence  of  an  admission  by 
the  principal  that  he  had  received  the 
goods.  "  The  stipulation,"  said  he, 
"  teas,  to  pay  for  goods  received,  not 
for  goods  acknowledged  to  have  been 
received."  The  ground  upon  which 
this  decision  rests  is,  that  the  princi- 
pal is  not  the  general  agent  of  the 
surety,  so  that  he  can  bind  him  by 
a  subsequent  acknowledgment  re- 
specting the  goods  furnished.  Bacon 
V.  Chesney,  1  Starkie,  192. 

'"Meade  v.  McDowell,  5  Binn. 
(Penn.)   195. 

"  See,  also,  Fenner  v.  Lewis,  10 
John.  (X.  Y. )  38,  where  the  admis- 
sions of  a  wife  that  she  had  received 
certain  property  for  her  husband, 
were  held  admissible.  Sinionton  v. 
Boucher,  2  Wash.  (U.  S.  C.  C.)  473; 
Treasurers  v.  Bates,  2  Bailey  ( S.  C. ) , 
302,  which  seems  to  be  directly  op- 
posed to  the  doctrine  of  State  Bank 
v.  Johnson,  ante. 

^-'  Root  &  Sons  Music  Co.  v.  Cald- 
well, 54  Iowa,  432. 


Sec.  112.]  Declarations  Against  Interest.  335" 

In  all  cases,  entries  op  reports  made  by  a  principal  in  the  due 
course  of  business,  or  which  it  is  his  duty  to  make,  are  admissible 
in  an  action  against  his  surety, ^^  but  are  held  not  to  be  conclusive 
ui)on  him."  The  term  "  declaration,"  as  applied  to  the  exception 
which  we  are  considering,  embraces  all  written  statements,  whether 
made  at  the  time  of  the  fact  declared  or  at  a  subsequent  day,'^- 
which  are  against  either  the  proprietanj  or  pecuniary  interest  of 
the  person^  making  them. 

Sec.  1X2.  Illustrations  of  the  Application  of  this  Exception. 

Entries,  in  the  books  of  a  corporation,  of  a  collector  of  taxes,, 
an  agent,  steward,  bailiff,  receiver,  etc.,  subject  to  the  inspection 
of  others,  charging  the  party  making  it  with  money  or  property 
received,  come  clearly  within  the  exception,  as  also  do  entries  in 
private  books  kept  solely  for  the  convenience  of  the  owner,  and 
m  his  custody;  and  such  entries  are  admissible,  although  they 
form  only  a  part  of  a  general  debtor  and  creditor  account,  the 
balance  of  which  is  in  favor  of  the  receiver,^  because,  to  the  extent 
of  such  entries,  the  admission  is  against  the  interest  of  the  party 
making  them,  and  the  balance  in  his  favor  would  be  diminished  to 
that  extent.  The  question  as  to  whether  an  entry  made  by  a  per- 
son, acknowledging  the  payment  of  money  as  due  to  himself,  is 
admissible  as  a  declaration  against  interest  in  cases  where  such 
entry  is  itself  the  only  evidence  of  the  charge  of  which  it  shows 
the  subseqiient  liquidation,  is  one  upon  which  the  authorities  are 
conflicting,-  but  the  weight  of  authority  seems  to  be  decidedly  in 
favor  of  its  admission.^  In  an  action  for  the  recovery  of  money, 
against  the  administrator  of  a  bailee,  a  memorandum  book  offered' 

^^  Stern  v.  People,  102  111.  540.  guendo  in  9  C.  &  P.   255,  and  R.  v. 

^^Ohning  V    Evansville,  66  Ind.  50,  Lower     Havford,     cited     2      Smith's 

overruling  State^  v.   Grammer    28  id.  Leading  Cases.  194,  »..  held  that  they 

530;   State    v.    Pruther,    44    id.    287,  are.     See   Calloway   v.   McMillan,    11 

C'Jh.er'*?^''"!-^''^''    ""■    ^^■''^°"'       ^'f^-    (Tenn.)    557,  where  entries  in 
Gi  niei    (\a^),  23o.  a   decedent's  book  of  payments  made 

^hortT  Lee  "1"?\^  \^  ^^-  '''■'  ^  .^"'"  ^«  tl-  plainti'ffVere  held  to 

i^v-l,         '         r^  ^-  '^'n-  ^  ^^  inadmissible,  as  they  were  neither 

.no^^P  '"1"*    ^.^''T'  4   9-    ^    P-  ^"tries  against  interest^ or  in  an  offi' 

592;    Clark  v.  Wilmot,  1  Y.  &  C.  53;  cial   employment 

±i    V    VVoith    4  Q.  B.  134.  R.  y.  Hendon.  cited  9  C.  &  P    -'55  •  R 

^Doe  V.  Vawles,   1  M.  &  Rob.  261,  v.  Lower  Hayford,  2  Smi^h^"  Leading 

and   Doe   v.   Burton,   9   C.   &   P    254,  Cases,    194,   l;    Highan    v    Rid^"/ 

held  that  such  entries  are  not  admis-  10  East,  109  ^^^^o^\^iy, 

sible;   while  R.   v.   Hendon,   cited  ar- 


336  Evidence.  '  [Chap.  10 

by  the  defendant  and  admitted  in  evidence  was  proved  to  be  in 
the  handwriting  of  the  bailee,  and  it  was  shown  that  the  entries 
were  contemporaneous  with  the  occurrence  of  the  transactions. 
It  was  held  that  these  memoranda  were  in  the  nature 
of  a  statement  by  a  trustee  of  his  doings  as  such.  They  charged 
him  with  various  matters,  and  most  of  the  entries  were  against 
his  own  interests.  Hence  the  entries,  though  not  conclusive,  were 
evidence  for  the  jury  to  consider.^ 

So,  too,  memoranda  made  by  a  sheriff,  in  a  book  kept  by  him 
for  that  purpose,  are  admissible  as  evidence  in  a  suit  between 
third  parties,  after  the  death  of  the  sheriff,  where  the  entries  were 
made  in  the  course  of  his  official  business,  and  were  against  his 
interest  at  the  time-^    The  fact  that  a  person  who  made  entries  in 
a  ledger  was  not  a  clerk  in  the  store,  but  was  employed  merely  to 
post  the  books  of  the  party  offering  them  in  evidence,  cannot  ex- 
empt such  evidence  from  the  operation  of  the  general  rule  which 
permits  entries  made  by  a  person  against  his  interest  to  be  offered 
in  evidence.      Thus,  where  the  plaintiff  offered  in  evidence  his 
original  ledger  book,  containing  entries  in  the  handwriting  of  the 
defendant's   testator,    and    afterwards  his   day-books,    containing 
daily  entries  against  deceased  and  other  parties,  but  all  in  the 
handwriting  of  the  testator,  it  was  held  that  although  these  en- 
tries would  not  have  been  admissible  for. the- purpose  of  charging 
a  third  person,  because  made  by  a  clerk  in  the  ordinary  discharge 
of  his  duty,  and  contemporaneous  with  the  transactions  to  which 
they  related,  yet  they  were  admissible  as  declarations  or  admis- 
sions made  by  the  party  against  his  interest.^ 

Sec.  113.  Person  Making,  must  be  Dead. 

The  turning  point  in  the  admission  of  this  class  of  entries  is, 
that  the  person  who  made  the  entry  is  dead.  Being  dead,  the  en- 
try in  discharge  proves  not  only  the  simple  fact  of  payment,  so 
as  to  extinguish  the  debt,  but  may  be  received  to  every  incidental 
matter  stated  in  the  declaration.  Thus,  the  entry  in  the  books  of 
the  midwife  proved  not  only  the  payment,  but  the  time  of  the 

♦Gaines    v.     Gaines,     39    Ga.     68;  evidence  that  they  were  original  and 

Buckley   v.    Buckley,    12   N.    W.   423.  contemporaneous  must   be  extrinsic. 

In  State  v.'  Castle,  79  N.  C.  34,  it  was  '  Field  v.  Boynton,  33  Ga.  239. 

lield  that  to  render   business   entries  '  Ward  v.  Leitch,  3  Md.  326. 
of   deceased    persons    admissible,   the 


Sec.  113.] 


Declaration's  Against  Interest. 


337 


.birtll.^  The  entry  of  a  deceased  attorney  of  the  payment  to  him 
of  a  part  of  the  judgment,  proved  not  only  the  payment,  but  by 
whom  it  was  made,  and  on  what  account,  distinguished  between 
the  principal  and  the  surety.^  But  the  rule  is  othewise  where  the 
declarant  is  alive.' 


'  Higham  v.  Ridgway,  10  East  109. 

-  Thompson  v.  Stevens,  2  N.  &  Mc- 
Cord   ( S.  C. ) ,  493. 

^  Thus,  in  an  action  by  one  surety 
against  another,  for  contribution  of 
money  paid  by  one  ph^intiff  on  a 
bond  to  West  and  others,  after  the 
plaintiff  had  proved  the  payment, 
the  defendant  insisted  that,  before 
the  plaintiff  had  paid,  the  principal 
had  discharged  the  debt,  so  that  the 
plaintiff  had  paid  in  his  own  wrong. 
To  show  the  previous  payment,  the 
defendant  proved  that  the  principal 
had  paid  money  to  the  obligees,  and 
then  offered  to  prove  the  admission  of 
West,  one  of  the  obligees,  that  such 
papnent  had  been  made  on  account 
of  tlie  bond.  It  was  objected  that 
West  should  be  called,  and  the  ob- 
jection sustained.  Parke,  J.,  re- 
marked that  what  West  said  at  the 
time  of  the  pajanent  might  be  re- 
ceived as  a  part  of  the  res  gestae; 
but  any  declaration  made  after  pay- 
ment, upon  what  account  he  received 
the  money,  is  no  evidence  against  the 
plaintiff.  His  unsworn  declaration 
•cannot  bind  any  interest  of  the  plain- 
tiff. Dunn  V.  'Slee,  Holt  N.  P.  399. 
And  a  mere  oral  declaration  of  this 
■character,  coming  from  the  creditor, 
even,  after  his  decease,  would  be  in- 
admissible. In  a  like  action  for  con- 
tribution, the  defendant  offered  to 
prove,  by  the  creditor's  acknowledg- 
ment, she  being  dead,  that  the  de- 
fendant had  paid  $300  of  the  money 
as  surety.  This  was  offered  in  order 
to  reduce  the  amount  of  contribution. 
The  fact  of  payment,  or  by  whom,  or 
on  what  account  made,  was  not  of- 
fered to  be  proved  in  any  other  way. 
The  evidence  was  rejected  as  hearsay. 
The  court  said  such  admissions  ought 
not  to  be  received  at  all,  except 
against  the  party  making  them,  or 
those  claiming  under  him.  Thomas 
T.  Thomas,  2  J.  J.  Mar.  (Ky. )  GO.  In 
&    similar   action,   a    receipt    for    the 

22 


moneys,  signed  by  the  attorney  on 
record,  of  the  creditor  who  had  sued 
and  obtained  judgment  against  the 
sureties,  was  denied  as  evidence  be- 
tween the  latter,  though  offered 
merely  to  show  the  payment  qf  the 
money,  the  attorney  being  still  alive. 
Warner  v.  Price,  3  Wend.  (N.  Y. ) 
397.  The  receipt  was  obviously  no 
better  evidence  than  if  made  by  the 
party  instead  of  his  attorney;  it 
would  be  prima  facie  evidence  against 
the  former,  but  as  between  the  sure- 
ties, or  between  them  and  their  prin- 
cipal, M'as  no  more  than  a  written 
statement,  without  oath.  When  a 
letter  of  the  alleged  receiver  of  goods 
on.  commission  was  produced  against 
the  defendant,  who  was  sued  for  hav- 
ing fraudulently  recommended  the  re- 
ceiver as  credit-worthy,  acknowledg- 
ing the  delivery  of  the  goods,  it  was 
rejected,  Tilghan,  .J.,  saying:  "Col- 
lusions might  be  formed  between 
plaintiffs'  and  their  witnesses,  who 
might  easily  be  induced  to  make  dec- 
larations in  letters  which  they  would 
be  afraid  to  verify  on  oath  in  open 
court."  Longenecker  v.  Hyde,  6  Bin. 
(Penn. )  1.  In  assumpsit'  for  goods 
sold  to  defendant's  wife,  who  was  en- 
titled to  a  separate  maintenance  pay- 
able by  the  defendant  to  trustees,  the 
material  question  was,  whether  tlie 
maintenance  had  been  regularly  paid. 
To  show  this,  the  receipts  of  the  trus- 
tees were  offered  in  evidence  by  the 
defendant.  Held  inadmissible;  and, 
per  curiam,  "A  man's  receipt  is  not 
evidence  to  prove  a  payment  against 
a  third  person.  Those 'who  gave  the 
receipts  should  have  been  called." 
Cutbush  V.  Gilbert,  4  S.  &  R.  (Penn.) 
551.  In  trover  for  goods  distrained, 
the  plaintiff  insisted  that  he  was 
tenant  of  John  Brown,  and  not  of  the 
defendant,  Hugh  Brown;  and  showed 
that  the  payment  of  rent  had  always 
been  to  John.  To  sliow  that  John 
had    received   the   money    as    the   de- 


338 


Evidence. 


[Chap.  10 


I  he  general  rule,  therefore,  is,  that  certificates,  receipts,  or  other 
admissions  of  payments,  made  by  persons  other  than  the  party  to- 
the  suit  in  which  they  are  offered,  cannot  be  received ;  but  such 
payments  must  be  proved  by  a  witness.*  Accordingly,  the  certifi- 
cate of  a  living  surveyor,  that  he  had  received  his  fees  of  survey^ 
being  offered  to  affect  a  party  in  a  suit  with  which  the  surveyor  had 
no  concern,  was  held  inadmissible.  And  the  admission  of  the 
plaintiff's  agent  to  collect  the  money,  that  he  had  made  the  collec- 
tion, is  no  evidence  against  his  principal." 


fendant's  agent,  the  latter  offered 
John's  account  of  the  payments  ren- 
dered bv  him  to  the  defendant.  Held 
that  John,  being  alive,  should  be 
called:  and  the  account  was  rejected. 
Spargo  V.  Brown,  9  B.  &  C.  935. 

In  another  action  it  appeared  that 
one  Beaman  had,  with  three  others, 
signed  a  note  to  the  Bank  of  Rutland. 
He  insisted  tliat  he  was  their  surety; 
and  to  prove  that  he  paid  the  money, 
produced  and  offered  in  evidence  the 
receipt  of  the  cashier, '  indorsed  on 
the  note,  stating  that  he  had  paid  the 
money.  The  judge  refused  to  receive 
this  as  evidence  either  of  payment  or 
of  the  person  who  paid,  there  being 
no  proof  that  the  cashier  was  dead; 
indeed,  it  was  admitted  that  he  was 
living,  and  but  a  little  way  off.  And 
afterwards,  on  motion  for  a  new  trial, 
the  judge  refused  it.  Beaman  v. 
Cushmau,  Washington  Circuit,  June, 
1833,  before   CowEX,   Circuit  Judge. 

*  Cluo-gage      V.       Swan,      4      Binn. 
(Penn.)    150. 

=  Davis     V.     Whitesides,      1      Dana 
(Ky.),  177. 

It  cannot  be  denied,  hoAvever,  that 
the  rule  has  been  departed  from  in 
one  or  two  cases.  Thus,  where  one 
Sherman  authorized  Crosby  to  settle 
a  suit  brought  against  the  former  by 
Bennet,  and  pay  the  money  to  be 
found  due  on  the  settlement,  in  a 
suit  between  the  two  former,  wherein 
Crosby  claimed  the  money  as  paid  by 
him  on  the  settlement,  a  receipt  for 
the  money  as  paid  on  the  judgment 
in  the  cause,  signed  by  Bennet,  was 
admitted  as  evidence  of  the  settle- 
ment and  payment,  to  charge  Sher- 
man. Sherman"  v.  Crosby,  11  John. 
(N.  Y.)  70.  The  court  say  the  re- 
ceipt was  priina  facie  evidence  of  the 


demand    and    payment;      and    it   lay 
with    Sherman    to    impeach    it.        Of 
this  case  it  should  be  remarked  that 
there    was    no    pretense   that    Bennet 
was  not  alive,  and  within  the  juris- 
diction   of    the    court.     He    stood    as 
creditor,  and  Crosby  paid  the  money 
to    him  at   the    request   of    Sherman. 
The   amount   of  the  decision   is,   that 
in  all  actions  for  money  paid,  the  re- 
ceipt of  the  payee,  though  he  be  alive, 
sliall  be  admissible  to  charge  the  de- 
fendant  with    the    fact    of    payment. 
Bennet  was  not  an  agent,  nor  a  joint 
party   with    Sherman,    either   on    the 
record  or  as  having  a  common  inter- 
est;  the  receipt  might   or   might  not 
have  been   a   part   of  the  res   gestae, 
but  the  latter  did  not  appear,  for  no 
act  was  shown  to  which  the  written 
declaration   would  attach.     To  put  it 
on  the  latter  ground  would,  therefore, 
be    a    plain    instance    of    the    [jetitio 
jjrincipii.     In  a  word,  there  seems  to 
be  no  instance,  if  we  except  the  next 
case,  infra,  within  which  Sherman  v. 
Crosby  can  be  brought.     It  would  op- 
erate to  reverse  the  entire  rule   laid 
down   by   Tilghman,   C.   J.,  in   Clug- 
gage   V.    Swan,   supra.     Receipts   ani 
certificates  of  private   persons  Avould 
become    substitutes    for    their    sworn 
testimony.        In    actions     for    money 
paid,   this   new    kind   of   written   evi- 
dence would  be  the  universal,  because 
the    ready,    medium    of   proof,   which 
may,   according  to  Tilghman,  C.  J., 
supra,  be  collusively  introduced;  and, 
we  may  add,  amended,  like  a  notary's 
certificate   to   charge   an   indorser,   or 
a  justice's  exemplification  of  his  pro- 
ceedings, till  it  shall  be  full  and  plain 
to  the   purpose.     It   would  be   a   con- 
venient mode  of  proof  for  fraudulent 
-    purchasers    of    property,    under    pre- 


Sec.  114.]     Declarations  Against  Interest. 


339 


Sec.    114.  Admissibility    of    Collateral    Matters   in    Declaration 
which  are  not  against  Interest  of  Declarant. 

The  rule  seems  to  be  that,  where  an  entry  is  against  the  interest 
of  a  person  making  it,  he  being  dead,  it  may  h&  used  as  evidence 
of  collateral  and  independent  matters,  which,  although  not  strictly 
against  the  interest  of  the  declarant,  yet  form  a  part  of  the  trans- 
action. Thus  a  sheriff's  memorandum  to  the  effect  that  he  has  sold 
land  under  a  tax  execution  is  a  declaration  against  his  interest  as 
laying  himself  open  to  all  the  consequences  of  a  possible  illegal 
sale,  and  so  the  statement  in  it  that  an  execution  issued  on  it  on 
which  he  made  the  sale  is  admissible  as  part  of  the  statement.^ 
Thus  the  entry  in  an  accoucheur's  book^  was  held  admissible  to 


tense  of  having  paid  large  debts  for 
the  insolvent,  or  paying  him  a  large 
consideration.  Both  the  time  and 
the  amount  of  paj-ments  are  gener- 
ally of  great  consequence  in  such 
cases;  and  the  strictest  rules  of  evi- 
dence can  with  difficulty  guard 
against  imposition.  In  another  case 
the  plaintiff  sued  for  passage  money 
to  Europe,  paid  for  the  defendant's 
testator,  and  the  captain's  oral  ad- 
mission, made  about  the  time  the  tes- 
tator sailed,  was  received  as  proof  of 
tlie  payment.  The  captain  was  dead, 
and  the  court  below  put  it  on  this 
ground.  On  error,  the  court  repudi- 
ated that  principle,  and  said,  whether 
the  captain  was  dead  or  alive,  the 
testimony  was  admissible,  being 
made  by  one  able  to  bind  himself  by 
a  receipt  or  acquittance,  and  made 
too  about  the  time  of  the  testator's 
sailing.  If  it  were  to  stand  on  the 
ground  of  the  captain's  death,  per- 
haps the  court  would  require  that  it 
should  have  been  in  writing.  Holla- 
day  V.  Littlepage,  2  Munf.  (Va.)  314. 
This  is  doubtless  a  safer  case  than 
Sherman  v.  Crosby.  The  captain  be- 
ing dead,  it  wants*  only  the  form  of  a 
written  entry  to  bring  it  within  the 
English  rule.  But  whether  dead  or 
living,  the  oath  of  the  hearer  could 
fix  the  time  when  the  declaration  was 
made;  and  prevent  imposition  in 
that  particular.  This  case,  however, 
fails  as  to  any  support  from  the  dec- 
laration being  a  part  of  the  res  ges- 
tae.    Proof   aliunde  that  money  was 


paid,  and  that  the  declaration  was 
contemporaneous  with  the  payment, 
would  alone  give  it  that  character,  so 
as  to  bring  it  within  the  suggestion 
of  Parke,  J.,  in  Dunn  v.  Slee,  siip7'a. 
It  seems  also  to  fail  in  support  from 
any  adjudged  case  founded  on  the 
declarant's  death;  for  we  believe  not 
one  has  gone  the  length  of  saying 
that  oral  declarations  of  a  person, 
however  much  it  may  militate  against 
his  interest,  shall  be  received  merely 
upon  the  ground  that  he  is  dead.  Not 
only  must  the  declaration  be  written, 
but  its  introduction  has  generally 
been  accompanied  with  circumstances 
calculated  affirmatively  to  repel  sus- 
picion that  it  may  have  been  simu- 
lated. 

^  Massee-Felton  Lumber  Co.  v.  Sir- 
mans    (Ga.,  1905),  50  S.  E.  92. 

^  In  Higham  v.  Ridgway,  ante. 
See,  also,  XVarren  v.  Greenville,  2 
Strange,  1129.  In  Nourse  v.  McCoy, 
2  Rawle  (Penn.),  70,  the  account 
book  of  a  deceased  magistrate,  show- 
ing charges  for  taking  of  three  other 
deeds  on  -the  same  day  and  no  charge 
for  the  one  in  question,  was  held  to 
be  admissible  upon  a  trial  of  a  per- 
son for  forgery  of  a  deed  which  pur- 
ported to  have  been  executed  by  the 
person  making  such  acknowledgments 
before  the  same  magistrate,  upon  the 
ground  that  as  res  gestae  they  af- 
forded a  presumption  as  to  other 
facts,  and  that  an  omission  in  a 
course  of  usual  entry  is  often  as 
strong  a  fact  as  an  entry. 


340  Evidence.  [Chap.  10 

prove  the  age  of  the  child  deceased,  the  entry  containing  a  state- 
ment of  the  accoucher's  attendance  and  his  charge  therefor,  and 
being  marked  "paid."  In  this  case  the  entry  woukl  not  have  been 
admissible,  except  for  the  entry  of  "■  paid,"  which  brought  it 
within  the  rnle,  as  being  against  interest ;  Lord  Ellenborough^ 
in  answer  to  the  argument  that  only  that  portion  of  the  entry 
containing  the  word  "  paid  "  could  be  used,  saying,  "  It  is  idle 
to  say  that  the  word  "  paid  "  only  shall  be  admitted  in  evidence 
without  the  context,  which  explains  to  what  it  refers ;  we  must 
therefore  look  to  the  rest  of  the  entry  to  see  what  the  demand  was 
which  he  thereby  admitted  to  be  discharged."  And  this  principle 
has  been  acted  upon  in  many  cases  since.^  But  it  must  be  remem-  [ 
bered  that,  in  order  to  make  entries  against  interest  evidence  of  | 
independent  matters,  theix  must  be  a  direct  connection  between  the  * 
entries  and  the  matters  they  are  sought  to  establish,  and  such  en- 
tries can  have  no  bearing  upon  ^natters  separate  and  distinct  there- 
from.* In  other  Avords,  an  entry  which  is  admissible  after  the 
maker's  death,  because  made  in  the  course  of  business,  is  evidence 
of  those  things  only  which,  according  to  the  course  of  that  business, 
it  was  the  duty  of  the  deceased  person  to  enter.  In  an  early 
English  case^  the  plaintiff,  being  a  brewer,  brought  an  action 
against  the  Earl  of  Torrington  for  beer  sold  and  delivered,  and 
the  evidence  given  to  charge  the  defendant  was,  that  the  usual 
way  of  the  plaintiff's  dealing  was,  that  the  drayman  came  every 
night  to  the  clerk  of  the  brew-house,  and  gave  him  an  account  of 
the  beer  they  had  delivered  out,  which  he  set  doA\Ti  in  a  book 
kept  for  that  purpose,  to  which  the  draymen  set  their  names,  and 
that  the  drayman  was  dead,  but  that  this  was  his  hand  set  to  the 
book;  and  this  was  held  good  evidence  of  a  delivery;  Otherwise 
of  the  shop-book  itself  singly,  without  more.  According  to  the 
English  cases,  if  the  drayman  had  notified  a  clerk  or  book-keeper 
of  the  plaintiff  of  the  delivery  of  the  beer,  and  the  latter  had 
made  the  entry,   it  would  not  be  admissible,  because   it  would 

'  Marks    v.    Lahee,    3    Bing.    X.    C.  coucheur  for  his  services,  and  his  tes- 

408;      Davis   v.    Humphrey.    G   M.    &  timony  that  it  was  correctly  made  at 

W.  153;   Doe  v.  Robson,  15  East,  32;  the  time,  was  held  to  be  evidence,  al- 

Slead  V.  Heaton,  4  T.  R.  669;     Leter  though  he  did  not  recollect  the  date. 

V.  Warren,  5  Q.  B.   773.       In  Heath  *  Knight   v.   Waterford.   4   Y.   &   C. 

V.  West,  26  N.  H.   191,  on  a  question  283. 

of    minority,    the    charge    of    an    ac-  ^  Price  v.  Torrington,   1   Salk.  285. 


Sec.  114.]  Declarations  Against  Intkrest.  341 

then  be  an  entry  predicted  upon  mere  hearsay,^  and  there  can  be 
no  question  as  to  the  soundness  of  this  rule.  A  written  statement 
of  a  fact  which  the  person  making  knew  nothing  about,  except 
what  he  has  heard  from  others  who  did,  or  pretended  to,  know, 
is  no  better  evidence  than  any  ordinary  hearsay.  The  circum- 
stance that  it  is  written  gives  it  no  additional  character  or  value. 
It  was  in  its  inception,  and  must  always  remain,  mere  liearsay. 
But  such  an  entry  is  admissible  if  the  person  reporting  the  facts 
embraced  therein  is  produced  and  testifies  to  the  correctness  of 
report,^  as  it  is  immaterial  how  the  truth  of  the  facts  stated  in  the 
entry  is  proved,  provided  it  is  proved.  In  a  Connecticut  case,^ 
in  an  action  for  goods  sold,  the  account  books  of  the  plaintiff, 
containing  a  charge  of  the  goods  to  the  defendant,  made  in  the 
regular  course  of  business,  are  admissible  in  support  of  his  claim; 
and  it  does  not  affect  the  question  of  their  admissibility  that  the 
entry  was  made  by  the  plaintiff"  upon  information  of  the  sale 
given  him  by  a  salesman  in  his  employ,  who  had  sold  and  deliv- 
ered the  goods  at  a  distant  place ;  nor  the  fact  that  the  delivery  of 
the  goods  is  admitted,  and  the  only  question  is  whether  they  had 
been  purchased  by  the  defendant  or  only  taken  to  be  sold  on  a 
commission.  The  circumstances  in  which  an  entry  was  made, 
so  long  as  it  was  made  in  the  regular  course  of  business,  affect 
only  its  weight  as  evidence.  The  fact  that  it  is  or  was  the  custom 
of  a  person  to  enter  certain  matters  in  his  book,  they  not  being 

"Brain  v.  Preece,  11  M.  &  W.  773.  and    Baldwin   was   called    to    produce 

The   application   of   this  branch   of  this   book,  with   the  view  of   proving 

the    rule    is   well    illustrated    by   the  thereby   the   delivery   of   the   coal    in 

case  last  cited.     Brain   v.   Preece,    11  question:   but  the  court  held  that  it 

M.  &  W.  773.     In  that  case,  in  an  ac-  was    inadmissible.        The    ground    of 

tion  for  the  price  of  coals  which  had  this   decision    appears    to    have    been, 

been  sold  at  the  pit's  mouth,  an  en-  that,     although     the     entries,     being 

try   was   rejected   which   appeared   to  made   under   the   foreman's   direction, 

have  been  made  in  the  following  man-  might  be   regarded  as   made  by  him, 

ner:   In  the  ordinary  course  of  busi-  yet,  inasmuch  as  he  had  no  personal. 

ness   it   was   the   duty   of  one   of  the  knowledge     of    the    facts    stated     in 

workmen   at  the   pit,  named  Harvey,  them,  but  derived  his  information  at 

to  give  notice  to  the  foreman  of  the  second  hand  from  the  workman,  there 

coal  sold;   and  the  foreman,  who  was  was  not   the   same   guaranty  for   the 

not  present  when  the  coal  was  deliv-  truth    of    the    entries    as    might    be 

ered,   and  who  was   unable  to   write,  found    where    the    party    makino-   the 

used  to  employ   a   man   named   Bald-  entry  had  himself  done  the  bvislness, 

win    to    make    entries    in    the    books  a  memorandum  of   which   he   had   in- 

from    his    dictation.        Baldwin    read  serted  in  his  book, 

over   these   entries    every   evening   to  'Payne  v.  Hodge,  71  X.  Y.  598. 

the  foreman.  At  the  time  of  the  trial  *  Smith  v.  Law,  47   Conn,  431.  " 
Harvey  and  the  foreman  were  dead. 


342  Evidence.  [Chap.  10 

against  his  interest,  and  it  not  being  his  duty  to  enter  them,  does 
not  render  the  entry  admissible.  Thus,  in  an  English  case,^  it  be- 
came necessary  to  show  that  a  contract  of  service  had  been  for 
less  than  a  year ;  and,  in  order  to  do  this,  proof  was  given  that 
the  employer,  who  was  dead,  had  in  the  course  of  his  business 
been  in  the  habit  of  hiring  farm  servants,  and  that  his  practice, 
when  he  did  so,  was  to  enter  the  time  and  terms  of  such  hiring 
in  a  book  kept  by  him  for  that  purpose.  This  book,  which  con- 
tained entries  of  tlie  sen'ice  in  question,  and  showed  that  the 
servant  had  been  engaged  for  half  a  year  only,  was  tendered  in 
evidence ;  but  the  court  held  that  it  was  inadmissible,  on  the 
ground  that,  although  it  might  be  the  practice  of  the  master  to 
make  such  entries,  it  was  not  his  duty  to  do  so. 

Sec.  115.  Distinctions  between  Rules  as  to  Entries  made  by 
Persons  in  Course  of  Business,  and  as  to  Declarations  of 
Deceased  Persons. 

In  many  respects  the  rules  which  regulate  the  reception  of 
entries  made  by  deceased  persons  are  the  same  as  those  which 
prevail  with  respect  to  declarations  against  interest.  For  in- 
stance, the  death, ^  the  handwriting,  and  the  official  character  of 
the  person  who  made  the  entry  must  be  proved ;  and  it  should 
further  appear  that  he  had  no  motive  to  misstate.  In  some  partic- 
ulars, however,  there  is  a  marked  distinction  between  the  two 
classes  of  cases.  Thus,  in  order  to  render  admissible  entries  made 
in  the  course  of  office  or  business,  they  must,  unlike  declarations 
against  interest,  be  proved  to  have  been  made  contemporaneously 
with  the  acts  which  they  relate.  "  It  is  to  be  observed,"  said 
Parke,  B.,  "  that  in  the  case  of  an  entry  against  interest,  proof 
of  the  handwriting  of  the  party,  and  his  death,  is  enough  to  au- 
thorize its  reception ;  at  whatever  time  it  was  made  it  is  admis- 
sible ;  but  in  the  other  case  (of  an  entry  made  in  the  course  of  bus- 
iness) it  is  essential  to  prove  that  it  was  made  at  the  time  it  pur- 
ports to  hear  date;  it  must  be  a  contemporaneous  entry."^  In 
using  the  word  "  contemporaneous,"  it  is  not  meant  that  the  entry 
m.ust  have  been  made  at  the  immediate  time  of  the  occurrence ; 

•R.  V.  Worth,  4  Q.  B.  132.  'Doe  v.  Turford.  3  B.  &   Ad.   897; 

^See  Cooper  v.  Marsden,   1   Esp.   1,       Poole  v.  Dicas,  1  Bing.  N.  C.  654. 
per  Lord  Kenyon. 


Sec.  115.] 


Declarations  Against  Interest. 


343 


hut  it  will  he  su.fficient  if  made  within  so  short  a  time  after  as 
reasonahly  to  he  considered  part  of  the  transaction.  Thus,  if  the 
business  is  done  in  the  morning,  and  the  entry  is  made  in  the  even- 
ing of  the  same  day,^  or  perhaps  even  on  the  following  morning,* 
it  will  be  sufficient ;  though,  where  several  intermediate  days  had 
elapsed  between  the  date  of  the  transaction  and  the  time  of  in- 
serting an  entry  of  it  in  the  book,  the  evidence  has  been  rejected  f 
and  in  one  case  the  interval  of  a  single  day  was  held  to  constitute 
a  valid  objection.''  So,  too,  as  we  have  seen,  declarations  against 
interest  are  often  admissible  to  prove  independent  matters,  which, 
tliough  forming  part  of  the  entry,  are  not  in  themselves  against 
the  interest  of  the  declarant.  A  stricter  rule,  however,  prevails 
with  respect  to  official  or  business  entries,  and  it  may  be  said  that 
whatever  effect  may  he  due  to  an  entry  made  in  the  course  of  office, 
reporting  facts  necessary  to  the  performance  of  a  duty,  the  state- 
Tnent  of  other  circumstances,  however  naturally  they  may  he 
thought  to  find  a  place  in  the  narrative,  is  no  proof  of  those  cir- 
drcumstances.''    Thus,  where  it  became  necessary  to  show  in  what 


^  Price  V.  Torrington,  1  Salk.  235; 
Ray  V.  Jones.  2  Gale,  220;  Curren 
V.  Crawford,  4  S.  &  R.    (Penn.)   3.  5. 

*  Ingraham  v.  Bockins,  9  S.  &  R. 
(Penn.)   285. 

^  Forsythe  v.  Norcross,  5  Watts 
(Penn.)'   432. 

•Walter  v.  Bollman,  8  Watts 
(Penn.),  544. 

'  Chambers  v.  Bernasconi,  1  C,  M. 
&  R.  308.  In  Mississippi  it  is  con- 
sidered to  be  a  settled  principle  of 
the  common  law,  that  a  memorandum 
of  one  who  knew  the  fact,  had  no  in- 
terest to  falsify  it,  and  which  was 
made  by  him  as  a  public  officer  in  the 
regular  course  of  his  business  as  such, 
he  being  dead,  is  admissible  evidence ; 
and  accordingly  the  written  entry  oi 
memorandum  of  a  deceased  notary, 
as  to  demand  and  notice,  in  case  of 
promissory  notes,  was  held  admissi- 
ble. Ogden  V.  Glidewell.  6  Miss.  179; 
Bodley  v.  Scarborough,  id.  729. 

In  Mp.ine,  Augusta  v.  Windsor,  19 
Me.  317,  in  assumjjeit  for  charges  in- 
curred by  the  plaintiffs  on  account 
of  a  pauper  properly  chargeable  on 
the  defendants,  it  became  important 
to  show  at  what  time  one  Linscott 
had  had  his  leg  broken;  and  for  the 


purpose  of  fixing  the  date,  the  plain- 
tiffs offered  in  evidence  a  day-book 
of  Dr.  Neal,  of  Gardiner,  containing 
two  charges  against  Linscott,  one 
dated  Sept.  28,  1821,  and  the  other, 
Sept.  29  of  the  same  year,  for  reduc- 
ing a  fracture  in  his  leg  and  for  med- 
ical attendance.  It  was  further 
proved  that  Dr.  Neal  attended  and 
set  Linscott's  leg;  that  he  died  in 
1839;  that  he  was  a  regular  prac- 
ticing physician  in  1820  and  1821; 
and  that  the  book  introduced  was  in 
his  handwriting.  The  evidence  was 
held  admissible.  And  in  a  later  case 
it  was  held  that  contemporaneous  en- ' 
tries  by  third  persons  in  their  own 
books  in  the  ordinary  course  of  busi- 
ness, where  the  matter  is  within 
their  knowledge  and  there  is  no  ap- 
parent motive  to  pervert  the  fact,  are 
evidence.  Dow  v.  Sawyer,  29  Me. 
118. 

In  Alabama  it  is  held  that  books 
of  accounts  kept  by  a  deceased 
clerk,  and  other  entries  or  memo- 
randa made  in  the  course  of  business 
or  duty,  by  any  one  who  would  at  the 
time  have  been  a  competent  witness 
to  the  fact  which  he  registers,  are 
admissible   evidence;   and  that   if  the 


344  Evidence.  [Chap.  10 

place  the  plaintiff  had  been  arrested,  and  in  order  to  do  this,  a 
certificate  of  a  deceased  sheriff's  officer,  which  had  been  returned 
by  him  to  the  office  in  the  ordinary  routine  of  his  duty,  and  which 
specified,  among  other  circumstances  connected  wuth  the  arrest, 
the  spot  where  it  took  place,  was  tendered  in  evidence.  The  court, 
while  admitting  that  the  certificate  was  evidence  of  the  arrest 
itself,  as  also  of  the  day  when  it  was  made,  since  it  might  be  nec- 
essary for  the  officer  to  make  knowm  these  facts  to  his  principal, — 
were  all  clearly  of  opinion  that  it  could  not  be  received  to  show 
the  particular  spot  where  the  caption  took  place,  that  circum- 
stance being  merely  collateral  to  the  duty  done.  This  decision 
turned  on  the  circumstance  that  the  sheriff's  officer  was  going 
beyond  the  sphere  of  his  duty  when  he  made  an  entry  of  the  place 
of  arrest,  and  that  such  an  entry  therefore  had  no  claim  to  be  re- 
ceived as  evidence  of  that  fact. 

book    containing    the    original    entry  some  bales  of  cotton,  the  book  itself 

has   been    destroj'ed   or   lost,   a   copy,  having  been  destroyed'  in  a  fire,  was 

proved  by  the  oath  of  a   person  who  decided  to  be  admissible  in  a  suit  be- 

copied   it,  is   admissible;   and  accord-  tween   third  parties.     Batre  v.   Simp- 

ingly  a  sworn  copy,  from  the  book  of  son,   4  Ala.   306;   Brown  v.   Steel,   14 

a        deceased       warehouseman       and  Ala.  63. 
weigher,  of  an  entrv  of  the  weight  of 


CHAPTER  XI. 
Memoranda. — When  May  be  Evidence. 

Section  116.  How  may  be  used  as  evidence. 

117.  Should  be  made  by  witness. 

118.  May  be  used,  although  its  contents  would  not  be  admissible. 

119.  Witness  need  not  have  recollection  independent  of. 

120.  When  the  opposite  party  is  entitled  to  see  the  memorandum. 

121.  Memorandum   itself  only  admissible,   when. 

122.  Memorandum  in  which  party  can  have  no  interest  to  falsify. 

123.  Minutes  of  testimony  of  deceased  witnesses. 

Sec.  1 1 6.  Memorandum,  how  may  be  used  as  Evidence. 

Memoranda  of  facts  and  circumstances,  made  by  an  eye  wit- 
ness, at  the  time  of  the  occurrence,  and  which  he  swears  to  be  cor- 
rect, are  not  generally  admissible  in  evidence,^  except  where  they 
are  made  in  the  due  course  of  business,  and  the  person  making 
them  is  dead,"  and  they  are  properly  authenticated.     Thus  on  the 


^People  V.  Elyea.  14  Cal.  144; 
Gilmore  v.  Wilson,  53  Penn.  St.  194; 
Carr  v.  Stanley,  7  Jones  (N.  C.)  L. 
131;  Urkett  v.  Coryell,  5  W.  &  S. 
(  Penn. )  60  ;  Tandy  v.  Masterton,  1 
Bibb  (Ky.),  330.  "Check  slips" 
made  in  the  regular  course  of 
business  in  transhipping  goods  from 
one  car  to  another  are  admissible  to 
aid  a  witness  making  them,  in 
recollecting  the  number  of  the  cars. 
Shriedley  v.  State,  23  Ohio  St.  130. 
The  certificate  of  a  physician  who 
examined  a  person  for  an  insurance 
upon  his  life  is  admissible  in  evi- 
dence, when  he  acted  by  the  con- 
sent of  both  parties  as  examiner, 
although  he  was  not  the  regular 
examining  surgeon  of  the  company, 
because  in  such  a  case  his  certificate 
partakes  of  the  nature  of  an  original 
document.  Mutual  Benefit  Life  Ins. 
Co.  V.  Cannon,  48  Md.  264.  See,  also, 
Bailey  v.  Burchard,  62  Me.  168, 
where  a  sealed  bill  made  by  the  per- 
son agreed  upon  as  the  parties  to 
make  it  was  held  admissible,  al- 
though not  sustained  by  the  oath  of 


(345) 


the  person  making  it,  there  being  no 
proof  that  any  omissions  were  made 
of  that  any  fraud  was  practiced. 
Private  memoranda  made  by  a  per- 
son in  a  pass  book  or  elsewhere  are 
not  admissible  in  his  favor,  (fold- 
ing V.  Orcutt,  44  Vt.  541.  Nor  are 
newspaper  accounts  of  what  a  person 
said  upon  the  occasion  of  the  hap- 
pening of  an  injury  to  him  through  a 
railway  casualtv.  Downs  v.  N.  Y. 
Central  R.  R.  Co.,  47  N.  Y.  82. 

-  Bank  of  United  Statee  v.  Davis, 
4  Cr.  (U.  S.  C.  C.)  533.  In  Welsh  v. 
Barrett,  15  Mass.  380;  North  Bank 
V.  Abbott,  13  Pick.  (Mass.)  465; 
Shone  v.  Wiley,  18  id.  558;  and 
Washington  Bank  v.  Prescott,  20  id. 
339,  such  entries  were  held  admis- 
sible, not  only  when  the  messenger 
is  dead,  but  also  when  he  has  ab- 
sconded, or  from  any  cause  his  testi- 
mony cannot  be  obtained.  But  see 
Avery  v.  Avery,  49  Ala.  193,  where 
the  true  rule  is  stated  to  be  that  a 
memorandum  made  by  a  person  de- 
ceased is  only  admissible  when  made 
by  him  in  the  due  course  of  business, 


346  Evidence.  [Chap.  11 

issue  as  to  the  location  of  a  deceased  grantor  of  a  deed  on  a  cer- 
tain day  his  diary  showing  what  he  did  on  that  day  is  inadmissible 
without  identification  and  without  proof  that  it  was  written  at  the 
place  and  on  the  day  that  it  was  purported  to  be  written.^  A  tab- 
ulated statement  may  be  admissible  in  evidence  when  drawn  up 
by  competent  persons  taken  from  voluminous  and  complicated 
papers  in  evidence  made  for  the  purpose  of  assisting  the  jurors 
in  arriving  at  their  verdict."*  Ihe  theory  of  the  law  deducible  from 
the  books  seems  to  be  that  a  memorandum  is  but  secondary  evi- 
dence of  the  facts  of  which  it  speaks,  the  primary  evidence  being 
the  knowledge  of  the  witness,  if  he  is  able  to  testify  truly  as  to  the 
facts  mentioned,  or  if  he  is  enabled  to  testify  from  present  recol- 
lection after  having  had  his  mind  quickened  by  the  memorandum 
• — that  is  to  say,  of  his  own  knowledge,  independent  of  the  mem- 
orandum ;  and  it  is  only  when  this  primary  proof  is  not  available 
that  resort  may  be  had  to  the  secondary,  so  that  it  becomes  neces- 
sary to  show  that  the  witness  cannot  speak  from  knowledge  of  the 
facts,  or  from  present  recollection  thereof,  after  having  consulted 
the  memorandum,  before  it  can  become  of  evidentiary  value,  either 
as  auxiliary  or  an  aid  to  the  mind  in  speaking  from  it.  But  to 
enable  a  witness  to  testify  from  the  memorandum,  under  the  con- 
ditions stated,  it  must  be  the  original,  unless  it  be  lost,  or  its  ab- 
sence excused.  If  the  original  be  produced,  and  it  appears  that 
it  was  made  in  the  usual  course  of  business,  it  may  be  introduced 
and  received  in  evidence  along  with  the  testimony  of  the  witness 
who  made  it,  and  is  enabled  to  say  that  the  facts  stated  in  it 
were  correctly  minuted  at  the  time ;  but  this  is  because  he  has  for- 

and  as  to  facts  to  which,  if  living,  he  52  Miss.  101,  where  a  pencil  memo- 
would  be  competent  to  testify.  Con-  randum  upon  an  official  register  or 
temporaneoils  entries  of  acts' and  oc-  list  of  lands  designating  one  lot  as 
currences,  as  we'll  as  copies  of  instru-  having  been  sold  to  K.,  was  held  ad- 
ments,  if  made  in  the  course  of  busi-  missible  as  tending  to  support  the 
ness,  or  where  they  would  naturally  title  of  one  claiming  under  K.  In 
be  looked  for,  are'  often  received  as  Cabat  v.  Walden,  46  Vt.  11,  a  book 
evidence,  especially  where  they  are  containing  an  account  of  expendi- 
sustained  by  other  evidence.  Briggs  tures  of  overseers  of  the  poor,  tchich 
V.  Henderson-,  49  Mo.  531.  Entries  it  loas  their  duty  to  make,  was  held 
made  upon  a  bill  of  lading  made  by  to  be  admissible  in  favor  of  the  tcnvn 
agents  of  a  railroad  company,  whose  to  prove  such  expenditures, 
duty  it  is  to  indorse  thereon  the  con-  ^Elliott  v.  Sheppard,  179  Mo.  382. 
dition    of    the    goods    when    received,  78  S.  W.  627. 

are  held  to  be  admissible  in  Georgia.  *  State  v.  Bradv,  100  Iowa,  191,  69 

Evans  v.  Atlanta,  &c.,  R.  R.  Co.,  56  N.  W.  290,  62  Am.  St.  Rep.  560. 
Ga.  498.     See,  also,  Kerr  v.  Ferrish, 


Sec.  116.]    "       Memorandum — When  Evidence.  347 

gotten,  so  that  he  is  unable  to  speak  concerning  such  facts  without 
the  aid  of  the  memorandum.      Memoranda  made  in  the   usual 
<;ourse  of  business,  when  made  up  from  reports  of  subordinates, 
are  admissible,  under  the  rule,  when  accompanied  by  the  testi- 
mony of  such  subordinates  that  they  represent  truly  what  had 
transpired,  combined  with  that  of  the  person  minuting  the  trans- 
fictions  that  they  were  also  noted ;  but  not  so  with  merely  private 
memoranda,  not  made  in  pursuance  of  any  duty  owed  by  the  per- 
son making  them.'     So  memoranda  made  by  a  deceased  sheriff, 
in  a  book  kept  by  him  for  that  purpose,  were  held  to  be  admis- 
sible in  a  suit  between  third  parties,  where  the  entries  were  made 
by  him  in  the  course  of  his  official  duty,  and  were  against  his  in- 
terest at  the  time.«     So,  when  the  identity  of  lands  sold  for  taxes 
as  unseated  is  in  question,  manuscript  books  containing  memo- 
randa sigTied  by  various  persons  who  had  been  deputy  surveyors,  ' 
found  in  the  office  of  a  deceased  deputy  surveyor,  are  admissible 
if  they  appear  to  be  such  memoranda  as  the  deputy  surveyors 
ought,  by  the  nature  of  their  duty,  to  have  made.^    But  where  three 
persons  united  to  make  an  inventory  of  a  stock  of  goods  the  inven- 
tory itself  is  not  admissible  as  a  memorandum  in  the  absence  of 
the  supporting  testimony  of  all  of  the  three  persons  making  it.* 
But  while  memoranda  made  by  a  person  who  is  still  living  are 
not  admissible,  for  want  of  being  verified  on  oath  or  its  equiva- 
lent, or  traceable  to  the  party  against  whom  it  is  offered,  the  benefit 
of  its  permanence  is  not  always  lost  to  justice.     Thus  a  witness 
who  has  drawn  up  a  written  narrative,  or  made  a  written  memo- 
randum of  a  matter  or  transaction,  may  in  many  cases  use  it 
while  under  examination  as  a  script  to  refresh  his  memory.^    Thus 

» Manchester   Assur.   Co.   v.   Oregon  'Russell    v.    Werntz,    24    Penn.    St. 

R    &  Nav.  Co.    (Ore.,  1905).  79  Pac.       337.  t^       , 

n.  a  i>dv.  wu     ^         ,  nVhitley    Grocery    Co.    v.     Roach, 

«  Field  V.  Boynton,   33  Ga.  239.     A  117  Ga.  918,  42  S.  E.  282 

written    memorandum,    made    by    an  » Hottle   v.   Weaver    206   Penn.    87, 

officer    in    the    course    of    his    official  55    A.   838;      Sandvvell    v.    Sandwell, 

duty,   which    is   against   his   interest,  Comb.   445 ;      Holt,   295 ;      Church    v. 

is     admissible     after     his     death,     as  Perkins.    3    T.    R.    749;       Burton    v. 

well  of  the  fa-cts  against  his  interest  Plummer,  2  Ad.  L  El.  341;   Beech  v. 

as  of  other   collateral  and  incidental  Jones,  5  C.  B.  696 ;   Smith  v.  Morgan, 

facts  and  circumstances  contained  in  2   Moo.   &   R.   257;   2   PhiU.   Ev.   480, 

it,  and  that,   too,'  irrespective  of  the  et  seq.,   10th  ed. ;   Dyer  v.  Best,  4  H. 

question   whether  any  priority  exists  &  C.   189;   Rowland  v.  Willetts,  5  N. 

between    the    officer    and     the    other  Y.  219 ;   Huff  v.  Bennett,  6  N.  Y.  237 ; 

party    against    whom    it    is    offered.  Halladay  v.  Marsh,  3  Wend.   (N.  Y.) 

Livingston  v.  Anoux,  56  N.  Y.  507.  142;  Green  v.  Disbrow,  7  Lans.    (N. 


348 


Evidence. 


[Chap.  11 


a  witness  may  refer  to  his  account  books,  or  his  cash  book/*^  or  to 
letters  written  by  himself  relating  to  the  transaction,"  or  even  to 
a  bill  of  particulars  or  memorandum  not  made  by  himself,  if  upon 


Y.)  381;  Gilbert  v.  Sage,  5  id.  200; 
Marclay  v.  Shultz,  29  N.  Y.  351; 
Philbin  v.  Patrick,  6  Abb.  Pr.  (U. 
S.)  284.  Tlie  English  rule  is,  that 
a  witness  may  use  a  memorandum, 
or  any  book  or  paper,  to  refresh  his 
memory  if  he  can  afterwards  swear 
to  the  fact  from  recollection;  but  if 
he  cannot  so  swear  otherwise  than 
as  finding  it  in  the  book,  then  it 
must  be  produced.  Manghan  v. 
Hubbard,  2  M.  &  Ry.  5.  In  this 
country,  however,  a  memorandum 
is  never  evidence  per  se  of  the  facts 
stated  in  it,  but  may  be  used  by  the 
witness  to  refresli  his  memory. 
Courtnay  v.  Com.,  5  Rand.  (Va.) 
G6G;  Farmers'  Bank  v.  Whitehall, 
16  S.  &  R.  (Penn.)  90;  Cummings  v. 
Fisher,  Anth.  (N.  Y.)  1.  Where  an 
action  was  brought  for  goods  sold, 
and  the  plaintiff  offered  proof  that 
the  entries  in  his  books,  charging 
the  defendant  with  the  goods,  were 
made  by  his  clerk,  who  had  gone  to 
the  West  Indies,  held  that  such 
evidence  was  not  competent  to  es- 
tablish the  claim.  Kenedy  v.  Fair- 
man.  1  Hayw.  (N.  C.)  458;  White- 
tield  v.  Walk,  2  id.  24.  So,  where 
the  age  of  a  defendant  had  been 
written  in  a  Bible,  held  that  this 
memorandum  was  not  the  best  evi- 
dence, and  the  age   njight  be   proved 

by  parol.       v.  ,   1   Mc- 

Cord  (S.  C),  164;  Butler  v.  Young, 
3  Bibb  (Ky.),  520;  Berry  v.  Waring, 
2  H.  &  a  (Md.)  103.  See  post, 
notes.  And  a  meAiorandum  by  a 
district  attorney,  of  the  confession 
uf  a  prisoner,  need  not  be  produced; 
but  he  may  give  oral  evidence  of 
such  confession.  Patton  v.  Free- 
man, Coxe  (N.  J.  Eq.),  113.  In 
South  Carolina,  the  testimony  of  a 
witness  who  swears  positively  from 
written  memoranda,  though  they  do 
not  call  to  his  memory  the  facts,  is 
held  not  only  admissible,  but  better 
evidence  than  imaided  recollection. 
Pearson  v.  Wightman,  1  Rep.  Const. 
Ct.  (S.  C.)  344:  Haig  v.  Newton,  id. 
423;  Sharp  v.   Bingley,  id.   373.     See 


Brown  v.  Anderson,  1  Mon.  (Kv.) 
198;  Guy  v.  Mead,  22  N.  Y.  462. 
Tlie  general  principle,  however, 
deducible  from  a  majority  of  the 
cases  in  this  country  is,  that  the  wit- 
ness may  inspect  notes  or  memo- 
randa to  refresh  his  memory,  and 
then,  if  he  can  with  a  safe  con- 
science swear  to  the  facts  independ- 
ent of  the  memorandum,  in  other 
words,  if  he  is  then  able  to  remem- 
ber the  facts,  he  may  testify.  He  re- 
freslies  his  memory  from  his  memo- 
randa, and  then  swears  from  recol- 
lection ;  but  he  will  not  be  permitted 
to  read  his  memoranda  to  the  jury. 
Jimiata  Bank  v.  Brown,  5  S.  &  R. 
(Penn.)  87;  Robertson  v.  Lvnch,  18 
John.  (N.  Y.)  451;  Hawiand  v. 
Sheriff  of  Queens  Co.,  5  Sandf.  (N. 
Y.)  219;  Wood  v.  Ambler,  8  N.  Y. 
170. 

'"Meacham  v.  Pell,  51  Barb.  (N. 
Y.)  65;  Dinggs  v.  Smith,  4  J.  &  S. 
(N.  Y.  Sup.  Ct.)  283.  But  if  he 
has  first  sworn  positively  to  the 
facts,  he  cannot  refer  'to  his  books 
for  the  purpose  of  corroborating  his 
testimony,  as  in  that  case  his  testi- 
mony and  memory  is  wholly  inde- 
pendent of  the  memoranda.  Sack- 
ett  V.  Spencer,  29  Barb.  (N.  Y.)  180. 
But  see  Townsend  Mfg.  Co.  v.  Fos- 
ter. 41  N.  Y.  620,  where  it  was  held 
that,  where  a  memorandum  of  what 
took  place  at  a  certain  interview 
was  made  on  the  evening  of  the  day 
when  it  transpired,  and  it  corrobo- 
rates the  testimony  given  by  the  wit- 
ness, it  may  be  given  for  that 
purpose.  So,  in  McCormick  v. 
Penn.,  &c.,  R.  R.  Co.,  49  N.  Y.  303, 
it  was  held  that,  after  proof  of  the 
facts  contained  in  a  memorandum, 
the  paper  itself  may  be  read  to  the 
jury. 

"Lewis  v.  Ingersoll,  1  Keyes  (N. 
Y. ) ,  347.  And  if  the  original  memo- 
randum is  lost,  he-  may  refresh  his 
memory,  if  the  copy  was  made  by 
himself  or  under  his  supervision, 
from  a  copy  of  it.  Felkins  v.  Baker, 
6  Lans.    (N.  Y.)    516. 


i)Sec.  116.]  Memoeaxdum — When  Evidence.  349 

reading  it  he  is  then  able  to  recollect  and  testify  to  the  facts  con- 
tained therein.^^  A  witness  can  refresh  his  recollection,  from  a 
memorandum  made  bv  his  bookkeeper  from  items  on  his  books 
the  data  for  which  were  furnished  by  the  witness. ^^  If  the  orig- 
inal memorandum  is  destroyed,  a  witness  may  refer  to  a  copy 
thereof  made  by  himself  or  under  his  direction  and  supervision.^* 
Thus,  in  the  case  last  cited,  the  plaintiff,  who  was  a  foreman  and 
ciiiter  in  the  defendant's  shop,  kept  the  account  of  his  work  upon 
slips  of  paper.  These  slips  he  took  home  with  him  every  week, 
itnd  every  Saturday  night  he  would  figure  up  the  number  of 
hours  he  had  worked,  and  his  wife  would  set  it  down  for  him 
upon  another  paper,  and  tlie  original  slips  were  destroyed.  He 
refreshed  his  memory  from  the  copy  made  by  his  wife,  and  the 
court  held  that  it  was  proper  for  him  to  do  so,  as  under  the  cir- 
cuj.Mstances  the  copy  might  be  considered  as  the  original  memo- 
landum  made  at  the  time  by  himself,  or  by  his  direction,  which, 
in  the  language  of  Miller,  P.  J.,  "  is  the  same  thing  under  the 
circumstances  as  if  he  had  personally  done  it."  In  another  I^ew 
York  case,^^  the  plaintiff  was  tried  and  convicted  of  an  assault  with 
intent  to  kill.  Upon  the  trial  a  police  surgeon  testified  that  when 
the  con'!plainant   was   brought   to  the   station-house,   he   made    a 

"Smith  V.  Randall,  3  T.  &  C.    (N.  memory  was  impaired,  was  permitted 

Y. )    798;    Bogue  v.   Newcomb.   58    N.  to  refresh  his  memory  from   a  paper 

Y.  674;  aff'd  1  T.  &  C.    (N.  Y.)   251.  written  by  him  at  the  time.     In  State 

In    Hotchkiss    v.    Mather,    48    N.    Y.  v.   Miller,  53   Iowa,    154,   it  was  held 

478,  it  was  held  that  the  plaintiff,  a  that    a    Avitness     might    refresh     his 

witness    upon    the    stand,    might    re-  memory  by  referring  to  the  notes  of 

fresh    his   memory   from   a   memoran-  his  testimony  taken  before  the  grand 

dum  made  by  the  defendant.  jury.     See  Memphis.  &c.,   R.    R.   Co., 

"Taft    V.    Little,    178    N.    Y.    127,  v.  Maples,  63  Ala.  601,  where  it  was 

591;  70  N.  E.  R.  211.  held    that   before    a    witness    can    re- 

"  Filkins    v.    Baker,    6    Lans.    (N.  fresh     his     memory    from     books     or 

Y. )     516;    Green    v.    Disbrow,    7    id.  papers   it     must    be    shown    that   he 

381.      In    State   v.    Collins,    15    S.    C.  either     wrote     the     entries     or     had 

373,  a  witness  in  a  capital  case  who  knowledge     of     their     accuracy     even 

was  an  employee   in  a   hospital,   was  though   his   books,   etc.,   were   all   the 

permitted  to  refresh  his   memory   by  time  in  his  custody.     See  also  Acklin 

referring      to      a      contemporaneous  v.  Hickman,  63  Ala.  494,  where  it  was 

record     of     the     hospital,     following  held  that  a   witness  may   refresh   his 

Berry  v.   Jourdin,    11    Rich.    (S.   C. )  recollection      from     a      memorandum 

67,  and  distinguishing  the  case  from  when  it  was  made  by  him,  or  known 

Furman   v.    Peay,   2    Bailey    (S.   C),  and  recognized  by  him  as  stating  the 

394;   State  v.  Cardoza,   U  S.  C.  239;  facts  truly,  when  after  such  examin- 

and  Bank  v.   Zorn,    14   id.   444.     See  ation  he  can  testify  to  the  facts  as  a 

also  Cameron  v.  Blackman,  39  Mich.  matter  of  independent  recollection. 

108.    In  Cooper  v.  State,  59  Miss.  267.  "Adams  vs.  The  People,  3  Hun  (N. 

a  witness  who  was  an  old  man,  whose  Y. ) ,  654. 


350 


Evidence. 


[Chap.  11 


staterncut  to  him  as  to  the  persons  who  had  assaulted  him ;  that 
the  statement  was  Avritten  do\vn  upon  a  slate ;  that  he  thought 
names  were  mentioned  in  it,  but  could  not  remember  what  they 
were.  A  sergeant  was  then  called,  who  testified  that  the  slate  was 
handed  to  him  by  the  surgeon ;  that  he  copied  it  into  the  station- 
house  blotter,  and  then  rubbed  out  what  was  on  the  slate.  It  was 
held  that  the  statement  contained  in  the  blotter  was  properly  re- 
ceived in  evidence,  as  the  original  memorandum  had  been  erased 
from  the  slate  and  destroyed.  In  this  case  the  rule  is  carried 
much  further  than  the  English  cases  have  gone.  In  those  cases- 
the  rule  seems  to  be,  that  a  witness  may  refresh  his  memory  by  a 
copy  of  a  memorandum  when  after  looking  at  the  copy  he  is  able 
to  sirear  positively  to  the  facts  stated  therein  from  his  own  rec- 
ollection, or  that  he  knew  the  facts  to  he  as  stated  therein  at  the 
tirae}^ 


''  Duchess  of  Kingston's  Case,  20 
How.  St.  Tr.  619;  Tanner  v.  Taylor, 
cited  in  Doe  v.  Perkins,  3  T.  R. '754. 
In  Howard  v.  McDonough,  77  N.  Y. 
592,  the  court  laid  down  the  rule  as 
to  the  use  of  memoranda  as  follows: 
"The  law  as  to  the  use  of  memoranda 
by  witnesses  while  testifying  is  quite 
well  settled  in  this  State.  1.  A  wit- 
ness may,  for  tlie  purpose  of  refresh- 
ing his  memory,  use  any  memoranda, 
whether  made  by  himself  or  another, 
written  or  printed,  and  when  his 
memory  has  thus  been  refreshed,  he 
must  testify  to  facts  of  his  own 
knowledge,  the  memorandum  itself  not 
being  evidence.  2.  \Yhen  a  witness 
has  so  far  forgotten  the  facts  that  he 
cannot  recall  them,  even  after  looking 
at  a  memorandum  of  them,  and  he 
testifies  that  he  once  knew  them  and 
made  a  memorandum  of  them  at  the 
time  or  soon  after  they  transpired, 
which  he  intended  to  make  correctly, 
and  which  he  believes  to  be  correct, 
such  memorandum,  in  his  own  hand- 
writing, may  be  received  as  evidence 
of  the  facts  therein  contained,  al- 
though the  witness  has  no  present 
recollection  of  them.  3.  Memoranda 
may  be  used  in  other  cases  which  do 
not  precisely  come  under  either  of 
the  foregoing  heads.  A  store  of  goods 
is  wrongfully  seized,  and  an  action  is 
brought  to  recover  for  the  conversion. 


There  are  thousands  of  items.  No- 
witness  could  carry  in  his  mind  all 
the  items  and  the  values  to  be  at- 
tached to  them.  In  such  a  case,  a 
witness  may  make  a  list  of  all  the 
items  and  their  values,  and  he  may 
aid  his  memory  while  testifying  by 
such  list.  He  must  be  able  to  state 
that  all  the  articles  named  in  the  list 
were  seized,  and  that  they  were  of  the 
values  therein  stated,  and  he  may  use 
the  list  to  enable  him  to  state  the 
items.  After  the  witness  has  testi- 
fied, the  memorandum  whicli  he  has 
used  may  be  put  in  evidence,  not  as 
proving  anything  of  itself,  but  as  a 
detailed  seatement  of  the  items  testi- 
fied to  by  the  witness.  The  manner 
in  which  the  memorandum,  in  such  a 
case,  may  be  used  is  very  much  in  the 
discretion  of  the  trial  judge.  He  may 
require  the  witness  to  testify  to  each 
item  separately,  and  have  his  evi- 
dence recorded  in  the  minutes,  of  the 
trial,  and  then  the  introduction  of  the 
memorandum  will  not  be  important ; 
or  he  may  allow  the  witness  to  testify 
quite  generally  to  the  items  and  their 
values,  and  receive  the  memorandum 
as  the  detailed  result  of  his  examina- 
tion, leaving  to  the  adverse  party  a 
more  minute  cross-examination. 
Without  the  use  of  a  memorandum  in 
such  cases,  it  would  be  difficult,  if 
not  impossible,  to  conduct  a  trial  in- 


Sec.  116.] 


Memorandum — When  Evidence. 


351 


In  any  event,  it  is  questionable  whether  the  copy  should  be 
used,  so  long  as  the  original  is  in  existence,  and  its  absence  unex- 


volving  the  examination  of  a  large 
number  of  items.  Driggs  v.  Smith,  36 
N.  Y.  Superior  Court.  28.3;  McCor- 
mick  V.  Penn.  Cent.  R.  R.  Co.,  49  N. 
Y.  303;  Acklin  v.  Hickman,  63  Ala. 
594;  35  Am.  Rep.  54.  In  Com.  v. 
Ford,  130  Mass.  04,  it  was  held  that 
a  newspaper  reporter,  called  as  a  wit- 
ness, may  refresh  his  memory  as  to  an 
occurrence  in  his  presence  by  refer- 
ring to  a  printed  report  of  it  written 
by  him  at  the  time.  "We  are  of  opin- 
ion," said  Endicott,  J.,  "that  the 
Avitness  should  have  been  allowed,  for 
the  purpose  eof  refreshing  his  mem- 
ory, to  look  at  the  printed  report, 
which  he  stated,  as  of  his  own 
knowledge,  was  printed  substantially 
as  made  by  him.  It  was  not  con- 
tended that  the  written  or  printed 
report  or  any  portion  of  its  contents 
could  be  put  in  evidence.  It  was 
clearly  incompetent,  in  any  aspect  ot 
the  case,  as  presented.  The  rule, 
therefore,  that  to  prove  by  oral  tes- 
timony the  contents  of  a  paper,  relied 
on  as  evidence,  it  is  necessary  first  to 
show  that  it  has  been  lost  or  de- 
stroyed, or  that  upon  diligent  search 
it  cannot  be  found,  has  no  applica- 
tion to  this  case.  If  such  rule  did 
apply,  it  is  difficult  to  see  why  it 
was  not  competent  for  the  defendant 
to  prove  that  it  was  the  custom  in 
the  Herald  office  to  destroy  all  such 
original  written  reports  after  print- 
ing them ;  but  that  question  it  is  not 
necessary  to  consider." 

In  order  to  refresh  the  recollection 
of  a  witness,  it  is  not  important  that 
the  paper,  hook,  or  memorandum 
should  have  heen  written  or  printed- 
hy  the  ivitness  himself,  or  that  it 
should  he  an  original  writing.  It  is 
sufficient  if  he  saw  it  while  the  facts 
stated  therein  were  fresh  in  his  mem- 
ory, and  he  knows  that  they  are 
correctly  transcribed  or  printed.  Upon 
inspecting  it,  he  can  state  the  facts 
if  thereby  called  to  his  recollection. 
Chapin  v.  Lapham,  20  Pick.  (Mass.) 
467. 

In  Coffin  V.  Vincent,  12  Cush. 
(Mass.)  98,  which  was  trespass  for 
taking    and     carrying    away    certain 


sheep,  the  defendants  attempted  to 
prove  that  the  sheep  were  taken  by 
them  as  field-drivers,  while  running 
at  large,  and  for  that  cause  were 
taken  up  and  impounded.  To  prove 
this,  they  called  a  witness  to  show 
the  contents  of  the  notice  posted  up 
by  them  as  field-drivers,  which 
notice  had  been  lost  or  destroyed; 
and  in  testifying  to  its  contents  it 
was  held  that  the  witness  could  re- 
fresh his  recollection  by  referring  to 
a  form  of  such  notice,  which,  though 
not  made  by  himself,  he  had  com* 
pared  with  the  notice  posted  up^ 
and  found  them  to  correspond.  In 
that  case,  the  general  rule  applicable 
here  is  well  stated,  though  the  case 
diflers  from  this  in  the  fact  that  the 
contents  of  an  original  paper  were 
sought  to  be  proved,  and  therefore  it 
was  necessary  to  show  that  it  had 
been  lost.  In  this  case,  the  original 
written  report  of  the  witness  could 
not  have  been  used  in  evidence.  In 
Kensington  v.  Inglis,  8  East,  273,  a 
license  to  trade  with  the  enemy  had 
been  lost.  A  witness  was  called,  who 
had  made  an  entry  of  it  in  his  mem- 
orandum book  for  the  private  in- 
formation of  himself  and  his  em- 
ployer, which  book  was  not  produced 
in  evidence ;  and  it  '//as  held  that  the 
witness  might  testify  to  the  contents, 
of  the  license  from  memory,  although 
the  book  was  not  produced,  for  if  in 
court,  it  would  not  have  been  evi- 
dence per  se,  but  could  have  been  used 
by  the  witness  only  to  refresh  his. 
memory. 

The  case  most  nearly  resembling 
the  case  at  bar  is  Home  v.  Macken- 
zie. 6  CI.  &  Fin.  628.  A  surveyor 
made  a  survey  and  report,  which  he 
furnished  to  his  employers,  and  be- 
ing called  as  a  witness  he  produced  a 
printed  copy  of  this  report,  on  the 
margin  of  which  he  had  two  days  be- 
fore, to  assist  him  in  giving  his  ex- 
planation as  a  witness,  made  a  few- 
jottings.  The  printed  report  had 
been  made  up  from  his  own  original 
notes,  of  which  it  was  in  substance, 
though  not  in  words,  a  transcript, 
and  it  was  held  that  he  might  look 


352 


Evidence. 


[Chap.  11 


plaiucd;  for  the  rul-e  requinng  the  production  of  the  best  evidence 
is  equally  applicable,  whether  a  paper  is  produced  as  evidence  in 
itself,  or  is  merely  used  to  refresh  the  memory}'^  If  the  copy  is 
an  imperfect  extract,  or  is  not  proved  to  be  a  correct 
copy,  or  if  the  witness  has  no  independent  recollection 
of    the    facts    narrated    therein,    the    original    must    be    utred.^^ 


at  the  printed  copy  to  refresh  his 
memory.  In  Rex  v.  Duchess  of  King- 
ston, 20  How.  St.  Tr.  355,  619,  a  wit- 
ness was  allowed  to  use  a  copy  of  his 
own  memorandum  made  by  another 
person  in  his  presence.  In  Burton  v. 
Plummer,  2  Ad.  &  El.  341,  a  clerk  of 
a  tradesman  entered  the  transactions 
in  trade,  as  they  occurred  from  his 
own  knowledge,  and  the  tradesman 
fopied  them  into  a  ledger  in  the  pres- 
ence of  the  clerk,  who  checked  them 
as  they  were  copied.  It  was  held 
that  the  clerk  might  use  the  entries 
in  the  ledger  to  refresh  his  memqry, 
though  the  waste-book  was  not  pro- 
duced nor  its  absence  accounted  for, 
the  entries  in  the  ledger  having  been 
made  as  by  the  clerk  himself.  It 
was  in  the  nature  of  the  duplicate 
original,  and  is  similar  to  the  case  at 
bar,  where  the  written  report  of  the 
■witness  was  printed  in  the  news- 
paper, to  his  own  knowledge  sub- 
.stantially  as  made  by  him.  See,  also, 
Burrough  v.  Martin,  2  Camp.  112; 
Wood  V.  Cooper,  1  Car.  &  K.  645; 
Doe  V.  Perkins,  3  T.  R.  749;  Regina 
V.  Langton,  2  Q.  B.  D.  296. 

In  Huff  V.  Bennett,  6  N.  Y.  337,  it 
was  said:  "It  is  not  necessary 
that  such  writing  should  have  been 
made  by  the  witness  himself,  or  that 
it  should  be  an  original  writing,  pro- 
vided after  inspecting  it  he  can 
speak  to  the  facts  from  his  own 
recollection."  So  a  witness  may  be 
allowed  to  refresh  his  memory  from 
notes  taken  by  counsel  at  a  former 
trial ;  Regina  v.  Philpotts.  5  Cox  C. 
C.  329;  or  from  his  dispostion,  or 
-a  copy  of  the  same.  Smith  v.  Mor- 
gan. 2  Mood.  &  Rob.  257:  George  v. 
Joy,  19  N.  H.  544.  And  in  Henry 
V.  Lee,  2  Chit.  124,  where  a  witness 
was  allowed  to,  refresh  his  memory 
from  a  document  not  written  by  him, 
Lord  Ellexbdrough  said :     "  If  upon 


looking  at  any  document  he  can  so 
far  refresh  his  memory  as  to  recol- 
lect a  circumstance,  it  is  sufficient; 
and  it  makes  no  difference  that  the 
memorandum  was  written  by  him- 
self ;  for  it  is  not  the  memorandum 
that  is  the  evidence,  but  the  recol- 
lection of  the  icitness."  Com.  v. 
Jeffs,  Mass.  S.  C.  1882;  Queen  v. 
Langton,  2  Q.  B.  Div.  296;  State  v. 
Collins,  15  S.  C.  373:  State  v.  Rawls, 
2  X.  &  McCord  (S.  C),  331;  Berry  v. 
Jordon,  U  Rich.  (S.  C.)  67.  But  see 
State  V.  Cardoza,  11  S.  C.  239;  Bank 
V.  Zorn,  14  id.  444.  In  South  Caro- 
lina it  seems  that  the  memoranda 
must  be  contemporaneous  with  the 
happening  of  the  event.  State  v. 
Collins,  ante;  Ballard  v.  Ballard,  5 
Rich.   (S.  C.)   495. 

"  Burton  v.  Plummer,  2  Ad.  &  El. 
344.  See,  also,  Jones  v.  Stroud,  2  C. 
&  P.  196. 

'«Doe  V.  Perkins,  3  T.  R.  749,  ex- 
plained by  Patteson,  J.,  in  2  Ad.  & 
El.  215;  R.  V.  Hedges,  28  How.  St. 
Tr.  1367,  per  Lord  Ellenborough  ; 
Solomons  v.  Campbell,  cited  .1  St. 
Ev.  177,  178,  n.,  per  Abbott,  C.  J. 
Original  entries  and  memoranda 
with  a  suppletory  oath,  may  be  read 
in  evidence,  though  not  made  in  the 
course  of  business,  and  though  the 
witness  has  no  recollection  as  to  the 
facts  they  recite.  Thus,  the  question 
being  whether  an  indorsement  of  pay- 
ment on  a  note  was  made  in  time  to 
take  the  case  out  of  the  Statute  of 
Limitations,  a  written  computation 
made  at  a  subsequent  date,  with  the 
purpose  of  determining  the  amount 
then  due,  and  in  which  no  such  pay- 
ment was  included,  was  held  admis- 
sible with  the  oath  of  the  party  mak- 
ing it.  Guy  V.  Mead.  22  X.  Y.  462. 
The  questiori  being  as  to  the  length  of 
credit  given,  the  defendant,  on  notice 
from  the  plaintiff,  produced  the  origi- 


Sec.  116.] 


Memorandum — Whex  Evidence. 


353 


In  an  English  case/^  the  plaintiff's  clerk,  being  called  to 
prove  the  order  and  delivery  "of  certain  goods,  sought  to 
refresh  his  memory  by  some  entries  in  a  ledger.  The 
transactions  in  trade  had  been  noted  by  the  clerk  in  a  waste- 
book  as  they  occurred,  and  the  plaintiff,  day  by  day,  had  copied 
the  entries  into  the  ledger,  each  entry  being  at  the  time  checked 
by  the  clerk.  Under  these  circumstances  the  court  regarded  the 
ledger  as  an  original,  r.nd  allowed  the  witness  to  refresh  his 
memory  thereby  without  accounting  for  the  absence  of  the  waste- 
book.  And  in  another  case,^°  where  a  surveyor  was  permitted  to 
refresh  his  memory  by  a  printed  copy  of  a  report  furnished  by  him 
to  his  employers,  and  compiled  from  his  original  notes,  of  which  it 
was  substantially,  though  not  verbally,  a  transcript,  the  report 
seems  to  have  been  treated  in  the  light  of  an  original  document ; 
and  although  it  contained  some  marginal  notes,  made  only  two 
days  before,  it  was  still  allowed  to  be  used,  these  notes  consisting 
of  mere  calculations,  which  the  witness,  if  time  were  given  him, 
could  repeat  without  their  aid. 


nal,  the  bill  of  sale,  on  which  was 
minuted  the  time  of  credit.  This  evi- 
dence was  held  not  to  be  overcome  by 
the  testimony  of  the  plaintiff's  book- 
keeper, which  tended  to  show  that  he 
had  made  such  memoranda  without 
instructions  from  the  plaintiff  so  to 
do.  Leeds  v.  Dunn,  10  N.  Y.  469. 
The  plaintiff  having  testified  that  a 
certain  agreement  was  made  in  the 
presence  of  H.,  and  that  H.  at  the 
time  made  a  written  statement  of  the 
mode  of  settlement  of  the  parties'  ac- 
coants,  upon  the  basis  of  which  such 
agreement  was  made,  it  was  held  that 
it  was  competent  for  the  plaintiff  to 
introduce  in  evidence,  as  corrobora- 
tive of  his  own  testimony,  such  writ- 
ten statement.  Norton  v.  Downer, 
S3  Vt.  26.  A  memorandum,  though 
not  signed  by  the  party,  is  admissible 
in  connection  with  his  admissions 
that  it  contained  the  contract.  Hos- 
ford  v.  Foote,  3  Vt.  391.  If  a  ques- 
tion of  time  is  material,  a  writing 
which  the  plaintiff  testifies  that  he 
drew  up  in  connection  with  a  settle- 
ment with  the  defendant,  and  showed 
to  the  latter,  who  made  no  objection 

23 


to  it,  is  admissible  in  evidence  to  fix 
the  time  in  dispute,  although  it  is 
not  found  that  the  paper  was  in  fact 
shown  to  the  defendant,  or  that  the 
date  upon  it,  which  tends  to  fix  the 
time,  is  correct.  Goodnow  v.  Parsons, 
36  Vt,  46.  A  memorandum  of  an  oral 
agreement,  written  and  signed  by  the 
plaintiff  upon  his  private  memoran- 
dum book,  for  his  own  private  refer- 
ence, is  not  conclusive  upon  any  one, 
but  is  at  most  a  piece  of  evidence  not 
admissible  in  favor  of  the  plaintiff, 
except  when  accompanied  by  proper 
parol  proof,  and  not  competent 
against  him  except  as  an  admission, 
the  force  of  which  is  to  be  determined 
by  proof  of  the  circumstances  under 
which  it  was  made.  Stannard  v. 
Smith,  40  Vt.  513. 

"Barton  v.  Plummer,  2  Ad.  &  El, 
344. 

^"Horne  v,  McKenzie,  6  CI.  &  Fin. 
628,  630,  645.  See,  also,  Topham  v. 
ISIacgregor,  1  C.  &  Kir.  320,  where 
the  wrher  of  an  article  in  a  news- 
paper was  allowed  to  refresh  his 
memory  by  the  paper,  his  MS.  being 
proved  to  be  lost. 


354  Evidence.  [Chap.  11 

Sec.  117.  Memorandum  should  be  made  by  Witness. 

As  a  general  rule,  before  a  witness  can  refresh  his  memory  by 
looking  at  memoranda,  it  seems  to  be  further  necessary  that  they 
should  have  been  made  either  hy  the  witness  himself,  or  hy  some 
person  in  his  presence^  or  that  he  should  have  examined  them 
while  the  facts  were  fresh  in  his  memory,  and  should  then  have 
known   that   the   particulars   therein   mentioned   were   correctjly 
stated.^     In  accordance  witli  the  last  part  of  this  rule,  a  witness 
has  been  allowed  to  refer  to  a  log-book,  which,  though  not  written 
by  himself,  had,  from  time  to  time,  and  while  the  occurrences  were 
recent,  been  examined  by  him.^    So,  where  it  has  been  material  to 
prove  the  date  of  an  act  of  bankruptcy,  the  court  lias  several  times 
permitted  Avitnesses  to  refer  to  their  depositions',  taken  shortly 
after  the  bankruptcy,  though  such  depositions  were  of  course  not 
written  by  themselves,  but  merely  signed  by  them.*     So^  if  the 
witness  has  checked  an  entry  made  by  another  person  f  or  has  ac- 
tually seen  money  paid  and  a  receipt  given  f  or  has  read  a  mem- 
orandum to  a  party  who  has  assented  to  its  terms  ;'  in  all  these,  and 
similar  cases  he  will  be  allowed  to  look  at  the  document  itself, 
for  the  purpose  of  refreshing  his  memory  as  to  the  facts  men- 

*  Duchess    of    Kingston's    Case,    20  boat,  and   it  was  weighed  correctly; 

How.  St.  Tr.  619.  he   then   stated   the  weight  from   the 

^  Curtis  V.  Bradley,  65  Conn.  99,  entry.  On  cross-examination  it  ap- 
31  A.  591,  48  Am.  St.  Rep.  177  and  peared  that  the  witness  had  no  con- 
note p.  190;  Hart  v.  Godkin  (Wis.  nection  with  the  weighing  lock,  but 
1904),  100  N.  W.  1057;  State  v.  New  occasionally  weighed  boats;  that  he 
Orleans  Waterworks  Co.,  107  La.  1,  could  not  swear  that  the  entry  was 
31  So.  395,  411;  Meyers  v.  McAllister  in  his  handwriting,  and  that  he  had 
(Minn.,  1905),  103  N.  W.  564.  no    recollection    of    the    matter    inde- 

^  Burroughs    v.    Martin,    2    Camp.  pendent   of   the   entry.        Lines   were 

112.     In   Gilchrist   v.    Brooklyn,    &c.,  drawn  over  the  entry  in  the  book,  and 

Association,  39  N.  Y.  495,  it  was  held  an    entry    appeared    under    date    two 

that,  in   order  to  render  a  memoran-  days   later,   in   another   hand,   of   the 

dum    admissible,    the   witness    should  weight   of   the    boat.        The   plaintiff 

identify  the  handwriting  as  his  own.  moved  to  strike   out  the   evidence  as 

Thus,  in  that  case,  in  an  action  to  re-  to  weight,  which  was  refused,  which 

cover  the  purchase  price  of  a  quantity  the  court  held  to  be  error, 
of  potatoes,  alleged  to  have  been  pur-  *  Smith   v.    Morgan,    2   M.    &    Eob.. 

chased     by     the     plaintiff     as     agent  257;   Wood   v.    Cooper,    1    C.    »&   Kir., 

for      the      defendant,      and      shipped  045;   Vaughan  v.  Martin,  1  Esp.  440. 
to  the  latter  by  canal,  the  defendant  ^  Burton  v.  Plummer,   2  Ad.  &   El. 

claimed    a    deficiency   in   quantity   as  341. 

shown  by  the  weight  of  the  boat  and  "  Rambert  v.  Cohen,  4  Esp.  213. 

cargo,  at  a  weigh-lock  upon  the  canal.  '  Bolton    v.    Tomlin,    5    Ad.    &    El.. 

The  defendant  called  a  witness,  who  856;   Jacob  v.   Lindsay.    1   East,  459; 

testified  that,  in  his  belief,  the  entry  R.   v.    St.    Martin's,   Leicester,   2    Ad. 

in  the  weigh-book  was   in   his   hand-  &  El.  210. 
writing,   and,   if   so,   he   weighed  the 


Sees,  lis,  119.]        Memorandum — When  Evidence. 


355 


tioned  therein.  In  some  cases  a  greater  latitude  has  prevailed, 
and  witnesses  have  been  allowed  to  refresh  their  memories  from 
the  brief  notes  of  counsel  taken  at  a  former  trial,  provided  they 
could  afterwards  speak  from  recollection,  and  not  merely  from 
the  notes.^ 

Sec.  ii8.  Memorandum   may   be   used,    although   its  Contents 
would  not  be  Admissible. 

As  a  T\Titing,  used  to  refresh  the  memory,  does  not  thereby  be- 
come evidence  of  itself,  it  is  not  necessary  that  it  should  even  be 
admissible;  and  therefore,  a  receipt  which  cannot  be  read  for 
want  of  a  stamp,  may  yet  be  referred- to  by  the  witness  in  giving 
his  evidence.^  Neither  is  it  essential,  when  notes  are  used  by  a 
witness  who  is  called  to  prove  a  conversation,  a  speech,  or  the 
like,  that  they  should  contain  a  verbatim  account  of  all  that  was 
uttered.  Thus,  where  it  appeared  that  a  short-hand  ^\T.'iter  had 
taken  a  verbatim  note  of  such  parts  of  an  address  as  he  deemed 
material,  and  was  merely  able  to  swear  to  the  substantial  correct- 
ness of  the  remainder^  he  was  permitted  to  read  the  whole,  al- 
though it  was  strongly  urged  that,  as  by  the  witness's  own  showing 
the  note  was  a  partial  one,  the  fullness,  and  consequent  accuracy, 
of  which  rested  on  his  private  opinion  of  the  materiality  of  what 
was  spoken,  he  was  not  entitled  to  use  it  at  all,  but  was  bound  to 
depend  on  his  memory  alone.^  If  the  witness  has  become  blind, . 
or  from  other  cause  is  unable  to  read  the  entries,  tlie  paper  may 
be  read  over  to  him,  in  order  to  excite  his  recollection.^ 

Sec.  iig.  Witness  need  not  have  Recollection,  Independent  of 
the  Memorandum. 

If  a  witness  has  no  present  recollection  of  a  matter  as  to  which 
he  is  called  to  give  evidence,  either  independently  of  or  with 
reference  to  a  memorandum  made  by  him,  or  by  another  and 
found  by  him  on  a  verification  thereof  to  be  correct,  but  is  pos- 
sessed of  a  memorandum  which  he  testifies  he  made  and  then 

'Lawes  v.  Reed,  2  Lew.  C.  C.  152,  Lord  Ellexborough;     Catt  v.  How- 
citing  Balme  v.  Hutton  as  a  similar  ard,  3  Stark.  3,  per  Abbott,  C.  J. 
case.        See,    also,    Henrv    v.    Lee,    2  '  R.  v.   O'Connell,  Armstr.  &  Trev. 
Chitt.   124.                          "  165-167. 

'Maugham  v.  Hubbard,   8   B.  &  C.  'Catt  v.   Howard,   3   Stark.    3,   per 

14;    Jacob  v.   Lindsay,    1    East.   459;  Abbott,   C.    J.;   Vaughan    v.    Martin, 

Raniber    v.    Cohen,    4    Esp.    213,    per  1  Esp.  440,  per  Lord  Kexyon. 


356  Evidence.  [Chap.  11 

knew  that  it  was  according  to  the  facts,  or  was  made  by  another 
and  subsequently  by  him  verified  and  found  to  be  correct,  when 
he  had  knowledge  of  the  facts,  so  that  he  is  able  by  a  present 
reference  to  the  paper  to  testify  to  the  truth  of  the  matter  by  re- 
lation to  his  former  knowledge,  he  may  properly  so  testify, 
and  the  paper  itself  may  properly  be  received  in  evidence, 
not  as  an  independent  evidentiary  instrument,  but  as  part 
of  the  witness'  testimony.^  The  transcript  of  testimony  given  in 
evidence  by  a  witness  in  a  previous  case  may  be  put  in  evidence 
although  the  witness  is  present  and  through  lapse  of  time  has  no 
recollection  of  the  matters  contained  in  his  previous  testimony, 
if  the  witness  can  say  that  if  the  testimony  contained  in  the 
transcript  was  that  given  by  him  in  the  previous  case  it  was  true. 
Such  transcript  need  not  be  used  actually  to  refresh  the  recollec- 
tion of  the  witness  but  may  itself  be  admitted  and  read  in  evi- 
dence.^ A  list  of  personal  property  may  be  received  in  evidence 
on  testimony  of  a  witness  that  he  knew  it  was  correct  when  made 
even  although  the  witness  did  not  testify  that  he  w^as  unable  to 
recollect  the  separate  items  apart  from  the  list  as  the  list  upon 
its  face  satisfactorily  showed  that  he  could  not  truthfully  so  tes- 
tify it  being  a  list  of  some  600  different  items  of  personal  property.^ 
Thus  one  who  has  taken  notes  of  testimony  may  read  his  notes 
in  evidence  when  he  swears  that  he  knew  they  were  correct  when 
taken  even  although  he  has  no  independent  recollection  of  the  tes- 
timony.^ Thus,  where  a  clerk  entered  notes  in  a  bill-book  at  the 
time  when  they  were  delivered  and  in  the  due  course  of  business, 
and  upon  being  called  as  a  witness  he  was  unable-  to  testify,  in- 

^Hart  V.  Godkin  (Wis.,  1904),  100  randum  made  by  him  at  the  time,  13 

N.   W.    157.     Memoranda   made   by   a  able  from  it  to  testify  to  the  delivery 

witness  which   he  knew  were   correct  of  goods,  the  testimony  is  admissible, 

when  made  but  of  which  he  has  no  in-  although  lie   has  no   present   recollec- 

dependent  recollection  are  admissible  tion  of  the  transaction  except  that  af- 

as  pieces  of  evidence  in  themselves  in  forded  by  the  memorandum,  which  is 

Connecticut.     This   rule   was   applied  not  itself  competent  evidence.    Dugan 

to  certain  slips  filed  on  a  spindle  eon-  v.  Mahoney,  11  Allen   (Mass.),  572. 

taining  the  pay  roll  of  men  working  -  State  v.  New  Orleans  Waterworks 

on   a   house.        Curtis  v.   Bradley.   65  Co.,  107  La.  1,  31  So.  395,  411. 

Conn.  99,  31  A.  591,  48  Am.  St.  Rep.  =  Meyers      v.      McAllister      (Minn., 

177,  and- note,  p.   190;   Guy  v.  Mead,  1905),  103  X.  W.  564. 

29  X    Y    462-     Marclay  v.  Shulz,  29  *  O'Brien    v.    Stambach,    101    Iowa, 

id    346;   Meacham  v.  Pell,  51  id.  65;  40,  69  X.   W.   1133,  63  Am.  St.   Rep. 

Wilde  v    Hexter.  50   Barb.    (X.   Y.)  368;   State  v.  Smith,  99  Iowa,  26,  61 

448;   Heath   v.   West,   26   X.   H.    191.  Am.  St.  Rep.  219,  68  X.  W.  428. 
If  a  witness,  upon  looking  at  a  memo- 


Sec.  110.] 


Memorandum — When  Evidence. 


357 


dependently  of  the  entry,  what  the  contents  of  the  notes  were,  it 
was  held  that  the  entries  were  admissible.^  So,  where  an  agent, 
who  had  made  a  parol  lease,  and  entered  a  memorandum  of  the 
terms  in  a  book,  stated  that  he  had  no  memory  of  the  transaction 
but  from  the  book,  though  on  reading  the  entry  he  entertained  no 
doubt  that  the  fact  really  happened,  it  was  held  sufficient  f  and  a 
barrister,  called  to  prove  that  a  witness  had  materially  varied  his 
account  since  the  last  trial,  has  been  allowed  to  refresh  his  memory 
by  the  notes  on  his  brief,  though  he  had  no  independent  recollection 
of  what  took  place  on  the  former  occasion.^  So,  where  a  banker's 
clerk  is  shown  a  bill  of  exchange,  which  has  his  own  writing  upon 
it,  from  which  he  knows  and  is  able  to  swear  positively  that  it 
passed  through  his  hands ;  or  a  witness,  from  seeing  his  own  sig- 
nature to  the  attestation  of  a  deed,*  or  to  any  species  of  document,* 


°  Kennedy  v.  Crandall,  3  Lans.  ( N. 
Y. )  1,  Miller,  P.  J.,  saying:  "These 
entries  were  made  at  the  time  when 
the  note  was  given,  and  tend  strongly 
to  corroborate  the  testimony  of 
White,  who  relied  upon  the  entries, 
and  who  would  not  swear  positively 
that  the  words  were  not  in  the  notes, 
independent  of  them.  They  were  not 
in  the  nature  of  naked  hearsay  evi- 
dence or  statements  in  writing  of 
third  parties,  but  entries  of  transac- 
tions made  at  the  time  by  the  clerk 
of  the  party  in  the  regular  course  of 
business.  In  Marclay  v.  Shulz,  29 
N.  Y.  346,  it  was  held  to  be  compe- 
tent to  read  an  entry  made  by  a  wit- 
ness of  any  fact  material  to  the  is- 
sues, if  made  at  or  near  the  time 
when  'the  fact  occurred,  and  he  can 
swear  it  was  made  correctly.  See, 
also,  Guy  v.  Mead,  22  N.  Y.  462 ;  Hal- 
sey  v.  Sinsebaugh,  15  N.  Y.  485,  with- 
in the  rule  laid  down  in  the  authori- 
ties last  cited.  The  bill-book  intro- 
duced contained  an  original  memoran- 
dum made  by  the  witness  when  the 
facts  stated  transpired,  and  was 
clearly  admissible  evidence."  See, 
also,  Hildreth  v.  Lowell,  11  Gray 
(Mass.),  345;  Briggs  v.  Rafferty,  14 
id.  525;  Perkins  v.  Augusta,  &c.,  Co., 
10  id.  312.  Where  the  maker  and 
the  holder  of  a  note  had  mutually 
compared  memoranda  of  the  pay- 
ments made  on  the  note,  in  an  action 
in  favor  of  the  estate  of  the  deceased 


holder,  such  memorandum  is  admis- 
sible to  prove  payment.  Meyer  v. 
Reichardt,   112  Mass.   108. 

"Haven  v.  Wendell,  11  N.  H.  112; 
R.  V.  St.  Martin's,  Leicester,  2  Ad. 
&  El.  210.  See,  also,  Haig  v.  Newton, 
1  Const.  R.  (S.  C.)  423;  Sharpe  v. 
Bingley,  id.  343;  Maugham  v.  Hub- 
bard, 8  B.  &  C.  14.  In  Bank  of  Ten- 
nessee V.  Caman,  7  Humph.  (Tenn.) 
70,  a  notary's  book  contained  an  entry 
of  protest  for  non-payment,  and  of 
notice  given,  and  the  notary  stated 
that  he  was  in  the  habit  of  making 
such  entries  at  the  happening  of  the 
event.  It  was  held  that  his  belief, 
based  upon  such  entry,  was  good  evi- 
dence, and  that  he  need  not  swear 
that  he  had  a  recollection  of  the  pro- 
test and  notice. 

^R.  V.  Guinea,  Ir.  Cir.  R.  167,  per 

C'BOilPTON,   J. 

'  In  Briggs  v.  Rafferty,  14  Gray 
(Mass.),  525,  the  freight  books  of  a 
railroad  company,  supported  by  the 
testimony  of  the  clerk  who  made 
the  entries  therein,  that  he  had  no 
doubt  that  the  facts  stated  therein 
were  correct,  are  admissible,  al- 
though he  swears  that  he  has  no 
personal  recollection  of  the  facts. 
See,  also,  Perkins  v.  Augusta  Ins., 
&c.,  Co.,  10  Gray  (Mass.),  312;  Par- 
sons V.  Manufacturers'  Ins.  Co.,  16  id. 
463. 

'Maugham  v.  Hubbard,  8  B.  &  C. 
16,  per  Bayley,   J.;  R.   v.   St.   Mar- 


358  Evidence.  [Chap.  11 

says  that  he  is  therefore  sure  that  he  saw  the  party  execute  it,  this 
is  sufficient  proof  of  the  execution,  though  he  adds  that  he  has  no 
recollection  of  the  fact."  In  a  Massachusetts  case,"  in  an  action 
against  an  officer  for  not  returning  an  execution,  the  docket  of  the 
attorney  who  took  out  the  execution  containing  an  entry  that  it 
was  delivered  to  the  officer  on  a  certain  day,  taken  in  connection 
with  the  testimony  of  the  attorney  that  he  should  not  have  made 
the  entry  unless  he  had  delivered  the  execution  or  known  of  its 
delivery,  was  held  sufficient  evidence  that  the  execution  was  so  de- 
livered, although  he  had  no  recollection  of  making  the  entry  or  de- 
livering the  execution ;  and  the  same  rule  was  adopted  where  a 
constable  made  a  return  of  the  service  by  him  of  a  notice  issued 
by  a  city  council,  under  an  ordinance  of  the  city,  but  where  he 
swore  that  he  had  no  recollection  of  tlie  fact  of  service  except 
from  the  circumstances  that  the  return  was  written  and  signed 
by  him  ;^^  and  also  as  to  entities  made  in  the  books  of  a  bank 
by  a  cashier,  treasurer  or  clerk,  when  the  entries  are  identified 
by  them,  although  they  have  no  personal  recollection  of  the  facts.^^ 
So  the  freight  books  of  a  railroad  company,  supported  by  the  tes- 
timony of  the  person  making  the  particular  entries  therein  that 
he  has  no  doubt  that  the  facts  stated  therein  are  correct,  although 
he  has  no  other  knowledge  thereof  than  tlie  circumstance  that 
the  entry  was  made.^* 

And  it  seems  that  such  entries  are  admissible,  although  the 
clerk  or  person  called  to  verify  them  made  only  part  of  them,  and 
has  no  personal  recollection  of  the  facts  beyond  that  afforded 
by  the  entries,  especially  when  the  witness  can  swear  that  from 
the  course  of  business  he  believes  the  entries  state  the  facts.^^ 

tin's,  Leicester,  2  Ad.  &  El.  213,  per  "  Hildreth     v.     Lowell,     11     Gray 

Taunton,  J.;     Russell    v.    Coffin,    8  (Mass.).  345. 

Pick.  (Mass.)   143 ;  Jackson  v.  Christ-  "Anderson  v.  Edwards,   123  Mass. 

man,   4   Wend.    (N.   Y.)    277;   Pigott  273;   Jordan  v.  Osgood,  109  id.  457. 

V.    Hollowav,    1    Binn.     (Penn.)    436;  "  Briggs      v.      Rafferty,      14     Gray 

Smith  V.  Lane.  12  S.  &  R.  84;   Clark  (Mass.).   525;      Adams   v.    Caulliard, 

V.  Vorce,   15  Wend.    (N.  Y.)    193.  102  Mass.  167. 

"  R.  V.  Hardv.  24  How.  St.  Tr.  824,  '"  Bradford     v.     Stevens,     10    Gray 

per  Eyre,  C.  3.  (Mass.),  379, 

"Bunker  v.  Shed,  8  Met.    (Mass.) 
150. 


Sees.  120,  121.]     Memorandum — When  Evidence.  359 

Sec.  120.  When  the  Opposite  Party  is  Entitled  to  see  the  Mem- 
orandum. 

In  all  eases  where  documents  are  used  at  the  trial  for  the  pur- 
pose of  refreshing  the  memoiy  of  a  witness,  it  is  usual  and  rea- 
sonable, and  if  the  witness  has  no  independent  recollection  of  the 
fact,  it  is  necessarj,  tliat  the  opposite  counsel  should  have  an 
opportunity/  of  inspecting  them,  in  order  that  on  cross,  or  re^ 
examination,  he  may  have  the  benefit  of  the  witness's  refreshing 
his  memory  by  every  part.^  Xeither  is  the  adverse  party  bound 
to  put  in  the  document  as  a  part  of  the  evidence,  merely  because 
he  has  looked  at  it,  or  examined  the  witness  respecting  such  entries 
as  have  been  previously  referred  to  f  but  if  he  goes  further  than 
this,  and  asks  questions  as  to  other  parts  of  the  memorandum,  it 
seems  that  he  thereby  makes  it  his  ovm  evidence.^  If  a  paper  is  put 
into  the  hands  of  a  witness  merely  to  prove  handwriting,  and  not 
to  refresh  his  memoiw,*  or  if  put  into  his  hands  for  the  purpose  of 
refreshing  his  memory,  but  the  question  founded  upon  it  utterly 
fail,  tlie  opposite  party  is  not  entitled  to  see  it.^ 

Sec.  121.  Memorandum  itself  only  Admissible,  when. 

The  rule  is,  that  a  memorandum  itself  only  becomes  evidence 
when  the  witness,  after  examining  it,  although  able  to  swear 
that  he  knew  it  to  be  correct  when  he  made  it,  is  unable  to  state 
the  particulars  from  recollection,^  and  when  it  is  admitted  it  is 
subject  to  explanation,  by  the  party  making  it,  to  the  same  extent 
that  it  would  have  been  if  the  words  had  been  spoken  instead  of 
written.'^ 

^Howard  v.  Canfield,  5  Dowl.  417,  1904),  100  N.  W.  1057;  State  v.  New 
per  Coleridge,  J.;  R.  v.  St.  Mar-  Orleans  Waterworks  Co.,  107  La.  1, 
tin's,  Leicester,  2  Ad.  &  El.  215,  per  31  So.  395,  411;  Meyers  v.  McAllister 
Patterson,  J.;  Sinclair  v.  Steven-  (Minn.,  1905),  103  N.  W.  504;  Kel- 
son, 1  C.  &  P.  583,  per  Best,  C.  J.;  sea  v.  Fletcher,  48  N.  H.  282.  In 
Lloyd  V.  Freshfield,  2  C.  &  P.  332;  Paine  v.  Sherwood,  19  Minn.  315,  a 
Dupuy  V.  Truman,  2  You.  &  Coll.  Ch.  memorandum  containing  several 
341.  items   of  account  was   handed  to   the 

^  R.  V.  Ramsden,  2  C.  &  P.  604,  per  witness,    who    testified    that    he    was 

Lord    Tenterden;      Gregory   v.   Tav-  able  to  state  some  of  the  items  with- 

ernor,  6  C.  &  P.  281,  per  Gurnet,  B.  out     looking     at     the     memorandum, 

^  Gregory    v.    Tavernor,   6    C.   &    P.  which   was   not  original,   nor  the  ab- 

281.     See  Stephens  v.  Foster,  6  C.  &  sence   of   the   original   accounted   for. 

P.  289.  It  was  held  that  under  these  circum- 

*  Russell  V.   Rider,   6   C.  &   P.   416.  stances    the    memorandum    was    im- 

^  R.  V.  Dunscombe,  8  C.  &  P.  369.  properly  permitted  to  be  read  in  evi- 

'  Curtis  V.  Bradley,  65  Conn.  99,  31  dence. 

A.    591,   48    Am.    St.    Rep.    177,    and  '  Rice  v.  Heath,  39  Cal.  609. 
note,  p.  190;     Hart  v.  Godkin   (Wis., 


3G0  Evidence.  [Clia}).  11 

Sec.  122.  Memoranda  in  which  Party  can  have  no  Interest  to 
Falsify. 
There  is  a  class  of  memoranda  which,  although  not  against  in- 
terest, or  made  in  the  course  of  any  business,  are  nevertheless  ad- 
missible from-  the  very  circumstance  that  the  maker  could  have  no 
interest  to  falsify  the  facts.  Thus  it  has  been  held  that  a  record  of 
the  weather  kept  for  a  number  of  years  at  a  State  insane  asylum 
is  competent  evidence  to  prove  the  temperature  of  the  weather  on 
a  given  day  included  in  the  record.^  So  entries  made  regularly  by 
a  person  in  his  diary  may  be  admissible  but  only  when  properly 
authenticated.  Thus  on  the  issue  as  to  the  location  of  a  deceased 
gTantor  of  a  deed  on  a  certain  day  his  diary  showing  what  he  did 
on  that  day  is  inadmissible  without  identification  and  without 
proof  that  it  was  written  at  the  place  and  on  the  day  that  it  pur- 
ported to  be  written.* 

Sec.  123.  Minutes  of  Testimony  of  Deceased  Witnesses. 

The  minutes  of  testimony  taken  by  an  attorney  of  a  witness, 
since  deceased,  are  not  admissible  as  evidence  per  se,  but  the  at- 
torney may  testify  as  to  the  evidence  given  by  the  deceased  wit- 
ness, and  will  be  permitted  to  use  his  notes  as  memoranda  to  re- 
fresh his  memory  ;^  and  the  same  is  true  as  to  the  minutes  of  the 
presiding  judge.  He  may  testify  as  to  what  the  witness  said,  using 
his  minutes  to  refresh  his  memory,  but  his  notes  of  the  evidence 
are  not  per  se  evidence,,^  even  though  he  is  also  dead.^  But  in 
many  of  the  States  it  is  held  that  when  testimony  is  taken  down 
upon  the  trial,  and  the  person  taking  it  down  swears  that  it  con- 
t.ains  the  evidence  of  the  deceased,  it  may  be  read  in  evidence;* 
and  in  all  cases,  in  those  States  wdiere  a  stenographer  is  appointed 
by  the  court  under  a  statute  authorizing  him  to  do  so,  the  minutes 
of  testimony  taken  by  him  would  be  admissible,  if  their  genuine- 
ness is  established. 

^Armond    v.    Neasniith,    32     Mich.  ^  Foster  v.  Shaw,  7  S.  &  R.  (Penn.) 

231.     See,  also,  post,  §  212,  as  to  offi-  156. 

cial  weather  reports.  *  Moore    v.    Parsons,    9    M.    &    S. 

'  Elliott  V.  Sheppard,   179  Mo.  382,  (Penn.)    .51;      Riggins    v.   Brown.    12 

78   S.  W.  627.  Ga.  271;   Ashe  v.  De  Rosetts,  5  Jones 

•Waters  v.  Waters,  35  Md.   357.  (N.  C. )   L.  299;   Van  Buren  v.  Cock- 

-  Miles  V.  O'Hara,  4  Binn.    (Penn.)  burn,  14  Barb.   (N.  Y.)    118;  Mineral 

108;   Baton  v.  Wallis,  1  N.  &  McCord  Point  R.  R.  Co.  v.  Keep,  22  111.  9. 
(S.  C),  409.     See  "Testimony  of  De- 
ceased Witness." 


CHAPTER  XII. 

Books  of  Corporation. 

Section  124.  Entries  in  hank  books,  when  admissible. 

125.  Books  of  corporations  generally,  rules  as  to  admission  of. 

Sec.  124.  Entries  in  Bank  Books,  when  Admissible. 

Entries  in  the  books  of  a  deceased  notary  of  the  protest  of  a 
note  by  bini  are  admissible  to  establish  the  fact  of  protest/  and 
such  also  seems  to  be  the  rule  as  to  an  entry  made  by  a  notary's 
clerk.^  So,  too,  it  has  been  held  that  memoranda  made  by  a  bank 
messenger  of  demands  on  promisors  and  notices  to  indorsers,  in  re- 
spect to  notes  left  for  collection  in  the  bank,  are,  after  his  decease, 
admissible  to  establish  such  demands  and  notices,  upon  tlie  ground 
that  tliey  were  made  in  the  due  course  of  business.^    In  order  to 


^Nichols  V.  Webb,  8  Wheat.  (U. 
S.)   326. 

-  Sutton  V.  Gregory,  Peaks,  1.50.  In 
Poole  V.  Dieas,  7  C.  &  P.  79,  in  an 
action  against  an  indorser  upon  a  bill 
of  exchange  after  proof  of  the  ac- 
ceptance and  indorsement,  in  order  to 
prove  presentment,  a  witness  was 
called,  who  stated  that  he  was,  at  the 
time  when  the  bill  became  due,  clerk 
to  Mr.  Harrison,  a  notary,  and  that 
it  was  brought  there,  and,  according 
to  the  course  of  business,  copied  into 
a  book;  and  that,  in  the  margin  of 
that  book,  besides  the  copy  of  the  bill, 
was  an  entry  in  the  handwriting  of  a 
person  named  Planning,  who  was 
then  also  a  clerk  of  Mr.  Harrison's, 
but  who  had  since  died.  It  was  in 
the  following  words :  "  Out  of  town, 
and  no  orders. — C.  J.  M."  The  wit- 
ness stated  that  the  entry  was  in  ac- 
cordance with  the  course  of  business 
in  tlie  office,  and  purported  to  be  the 
answer  received  by  Manning  on  the 
presentment  of  the  bill;  and  he 
added  that  such  entries  were  almost 
always  made  on  the  same  evening, 
immediately    on    the    clerk's    return. 


and  never  later  than  the  following 
morning;  and  that  the  presentment 
of  bills,  according  to  the  practice  in 
London,  was  made  after  seven  in 
the  evening.  On  inspection  of  the 
bill  a  ticket  appeared  upon  it,  con- 
taining a  similar  entry  to  that  in  the 
margin  of  the  book,  but  made,  ac- 
cording to  the  testimony  of  the  no- 
tary's clerk,  by  another  clerk  named 
Hawes,  from  the  statement  of  Man- 
ning, which  other  clerk  he  believed 
was  still  living,  and  in  business  in 
the  city.  The  bill  was  presented  on 
Saturday,  and  a  clerk  of  the  plain- 
tiff proved  that  he  put  a  letter  to 
the  defendant,  giving  notice  of  its  dis- 
honor, into  the  New  Post-office,  on 
the  Monday.  Garlee,  J.,  left  the 
evidence  to  the  jury,  and  upon  a  rule 
for  a  new  trial,  his  ruling  was  sus- 
tained. See,  also,  Nichols  v.  Webb, 
8  Wheat  {U.  S.)  326;  Nichols  v. 
Goldsmith,  7  W^end.  (N.  Y.)  160; 
Halliday  v.  Martinett,  20  John.  (N. 
Y.)    168. 

MYelsh  v.  Barrett,  15  Mass.  38L 
Where  a  bank  messenger,  in  an  ac- 
tion   against    an    indorser,    testified 


(361) 


S62  Evidence.  [Chap.  12 

prove  a  debt  due  from  a  bank  to  a  certain  party  the  ledgers  or  bal- 
ance books  of  the  bank  are  admissible  in  evidence  when  made  in 
the  due  course  of  business  bv  those  authorized  to  make  them  and 
are  admissible  not  only  against  the  corporation  but  against  its 
stockholders  in  an  action  to  enforce  their  statutory  liability.  These 
are  not  secondary  evidence  simply  because  pass  books  were  issued 
to  each  of  the  depositors  in  which  the  amount  of  their  deposits 
was  entered  by  the  receiving  teller  at  the  time  they  were  made 
and  the  balance  books  are  admissible  without  the  production  of 
the  pass  books.*  But  it  seems  that  an  entry  made  in  a  bank  book 
which  goes  to  prove  that  the  bank  in  that  instance  departed  from 
a  well-established  usage,  is  not  admissible  in  favor  of  the  bank, 
even  though  the  person  making  it  is  dead.  Thus,  it  has  been  held 
that  a  book  of  original  entries  made  by  a  deceased  teller  of  a  bank 
is  not  admissible  to  prove  payments  made  to  a  depositor,  where 
the  custom  was  to  pay  money  to  depositors  on  checks.^  But  where 
the  entry  is  of  money  paid  on  a  check,  and  the  check  has  been  re- 
turned to  the  depositor,  the  rule  would  be  otherwise,  especially  if 
the  depositor,  upon  notice  to  do  so,  refused  to  produce  the  check. 
But  entries  made  by  third  persons  upon  the  books  without  the 
knowledge  of  the  parties  to  the  litigation  are  not  proper  evidence, 
because  such  books  are  not  public  records,  and  do  not  fall  within 
any  recognized  class  of  written  or  documentary  evidence.®  But 
where  the  entries  are  made  by  a  person  having  authority  to  make 
them,  in  the  due  course  of  business,  and  he  is  dead,  they  are  evi- 
dence, in  actions  in  favor  of  or  against  the  bank,  to  prove  either 
the  deposit,  loan  or  payment  of  money  either  to  or  by  the  bank. 

that  he  never  had  seen  the  note  in  *  Zang  v.   Wyant,   25   Col.    551,  56 

suit,  but  that  he  gave  the  defendant  P.  5G5,  71  Am.  St.  Rep.   145. 
notice    of    its    non-payment,  from    a  *  Bank  of  Montgomery  v.  Plannett, 

minute  in  a  book  kept  at  the  bank,  35  Ala.  St.  Cas.   178.     But  see  Union 

containing    a    minute    description  of  Bank  v.  Knapp.  3  Pick.    (Mass.)    96, 

notes    becoming    due    there,    the    evi-  where  it  Avas  held  that  in  an  action 

dence   was   held   to   have   been   prop-  by    a    bank   against   a    depositor   for 

erly  left  to  the  jury.     Weld  v.  Gor-  having    overdrawn    his    account,    the 

hain,  10  Mass.  366;'  Shove  v.  Wiley,  books  of  the  bank  are  proper  evidence 

18   Pick.    (Mass.)    558;     Washington  to    show    receipts    and    payments    of 

Bank   v.    Prescott,   20   id.    339.        In  money,  as  the  officers  of  the  bank,  to 

Bank  of  the  United  States  v.  Davis,  that    extent,    are    to    be    deemed    the 

4  Cranch   (U.  S.  C.  C),  533,  a  mem-  agents  of  both   parties;      and  if  the 

orandum    made    by    a    deceased    note  clerk  or  person  making  the  entry  is 

clerk   of   the   bank,   that   he  had   de-  dead,    it    is    sufficient,   to   let   in   the 

livered  a  certain  notice,  was  held  ad-  books,  that  the  entries  are  shown  to 

missible.  be  in  his  handwriting. 

"Barnes  v.  Simmons,  27  111.  512. 


Sec.  124.] 


Books  of  Corpoeation. 


363 


In  a  is^ew  York  case/  the  fact  that  a  bank  clerk  surrendered  a  note 
upon  erroneously  receiving,  as  full  payment,  less  than  the  amount 
due  thereon,  was  established  against  the  positive  testimony  of  the 
maker  thereof  that  the  full  amount  was  paid,  by  proof  that  the 
figures  in  the  margin  of  the  note  had  resembled  such  less  sum 
($210),  more  than  the  sum  named  in  the  body  ($510),  and  had 
"been  torn  off  after  the  surrender  and  before  the  production  of  the 
note  in  court,  and  that  the  less  amount  was  named  in  the  bank 
notice  and  books,  and  that  the  bank  balance  sheet  of  the  day  of 
maturity  showed  an  error  in  the  day's  transactions  of  only  seven 
cents  (instead  of  $300).^  So,  too,  such  books  are  evidence  be- 
tween the  bank  and  its  stockholders,^  but  not  in  actions  between 
strangers,^''  unless  it  is  shown  that  the  clerk  who  made  the  entry 
is  dead  or  beyond  the  reach  of  process ;  nor  is  such  book  admissible 
to  explain  an  entry  in  the  private  bank  book  of  the  opposite  party, 
if  the  latter  be  produced  only  on  notice  given  by  the  party  oifering 
the  bank  book,^^  or  unless  the  entries  upon  the  books  of  the  bank  can 
be  verified  by  living  witnesses  who  made  them  or  furnished  the  data 


^Metropolitan    Bank    v.    Smith,    4 
Eobt.    (N.   Y.)    229.     In  Ocean   Nat. 
Bank  V.  Carll,  9  Hun    (N.  Y.),  239, 
the  plaintiff,  in  order  to  prove  that 
it  was   the   bo7ia  fide   holder   of    the 
note     in    suit,    produced    a    discount 
register    of    the    bank    used    at    the 
time   of  the  discounting  of  the  note, 
which   contained   entries  which   tend- 
ed  to   show   that  the   note   was   dis- 
counted by  the  bank  on  the  31st  of 
July,   18G9,  and  proved  that  at  that 
time    one    H.    S.    Murray    was    dis- 
count   clerk   of    the    bank,    and    that 
he  was  dead;     that  it  was  his  busi- 
ness  to  make   the   entries,   and   that 
they  were  made  in  the  usual  course 
of    business    and    were    in    his    hand- 
writing.      The    court    held    that    the 
entries   were   admissible.     "  The   rule 
is,"  said  Bronson,  J.,  in  Brewster  v. 
Doane,  2  Hill  (N.  Y.),  537,  "  that  en- 
tries   and    memoranda    made    in    the 
usual  course  of  business  by  notaries' 
clerks  and  other  persons  may  be  re- 
ceived in  evidence  after  the  death  of 
the   person  making  them."     Halliday 
V.  Martinet,  20  John.    (N.  Y.)    168; 
Butler  V.  Wright,  2  Wend.    (N.  Y.) 
369;      Hart    v.    Wilson,    2    id.    513; 
Nichols  V.  Goldsmith,  7  id.  160.    And 


in  Sheldon  v.  Benham,  4  Hill  (N. 
Y. ),  129,  where  the  entries  made  by 
the  teller  of  the  bank  were  offered  in 
evidence,  Bronson,  J.,  said:  "It  is 
enough  that  he  acted  on  this_  occa- 
sion in  the  usual  course  of  his  em- 
ployment, and  being  dead,  the  entries 
which  he  made  at  the  time  were 
properly  received  in  evidence.  The 
rule  for  admitting  them  is  not  con- 
fined to  entries  made  by  public  of- 
ficers." Welsh  V.  Barrett,  15  Mass. 
380.  Where  there  is  any  reason  for 
doubt,  it  is  for  the  jury  to  say  how 
much  they  prove.  Davis,  P.  J.,  in 
Ocean  Nat.  Bank  v.  Carll,  ante. 

*  In  Snow  v.  Thomaston  Bank,  19 
Me.  269,  entries  made  by  the  cashier, 
of  the  appropriation  of  money  which 
the  bank  was  to  apply  to  the  pay- 
ment of  notes  belonging  to  it,  are  ad- 
missible to  prove  such  appropriation, 
especially  where  it  is  shown  that  the 
party  interested  had  seen  the  entries 
and  did  not  object  to  them. 

•Merchants'  Bank  v.  Rawle,  21 
Ga.  334. 

"Union  Bank  of  Florida  v.  Call,  5 
Fla.  409. 

"Philadelphia  Bank  v.  Offiver,  12 
S.  &  R.   (Penn.)   49. 


361  Evidence.  [Chap.  12 

upon  which  they  were  made.  Thus,  in  an  action  between  two  per- 
sons who  have  been  in  the  habit  of  dealing  with  each  other  by  notes 
and  checks  on  a  bank,  the  books  of  the  bank  are  competent  evidence 
to  show  what  disposition  has  been  made  of  such  notes  and  checks, 
and  how  the  proceeds  have  been  applied  and  used.^^  So  the  books 
of  a  bank,  in  which  the  parties  to  action  have  kept  their  accounts,. 
are  competent  to  prove  that  a  check,  given  by  the  plaintiff  to  the 
defendant,  had  been  carried  to  the  credit  of  the  latter  in  the  books 
of  the  bank,  and  that  the  money  had  thus  come  into  possession  of 
the  latter.  And  where  it  was  in  evidence  that  the  defendant  prom- 
ised to  send  his  daughter  to  the  school  of  the  plaintiff  and  that  she 
did  attend  the  said  school,  it  was  held  that  the  plaintiff's  books 
of  account  were  competent  evidence  to  prove  the  amount  of  service 
so  rendered,  and  also  the  amount  of  books  and  stationery  furnished 
to  her  for  the  purpose  of  instruction.^^ 

In  an  action  against  a  bank  by  a  depositor,  to  recover  on  a 
special  deposit,  the  books  of  the  bank  are  admissible  to  show  the 
character  of  the  deposit.  Thus  in  an  action  to  recover  from  a  bank 
a  certain  sum  in  gold,  which  the  plaintiff  claimed  to  have  deposited 
in  the  defendant's  bank,  specially,  an  entry  in  the  bank  book  of  the 
plaintiff  as  follows:  "  1861,  Dec.  30th,  cash  (coin)  $3,000,"  was 
held  admissible  for  the  purpose  of  verifying  the  testimony  of  a 
witness,  and  of  showing  the  nature  of  the  particular  entry,  and 
it  Avas  also  held  that  the  plaintiff  was  not  bound  to  put  in  evidence 
all  the  other  entries  in  the  books. 

Pass  books,  in  which  the  bank  enters  the  deposits  made  by,  as 
well  as  its  payments  to,  a  depositor,  are  evidence  in  an  action 
between  the  bank  and  the  depositor,^^  and  it  has  been  held  that 
w'here  entries  of  deposits  are  made  by  a  clerk  of  the  bank  in  the 
pass  book  when  the  deposit  was  made,  and  of  which  he  had  knowl- 
edge, they  are  conclusive  on  the  bank,  but  if  the  deposit  is  made, 
and  the  entry  is  afterwards  copied  upon  the  pass  book  from  the 
ledger,  the  bank  is  not  concluded  thereby,  because  the  entry  then 
stands  as  mere  hearsay,^^  and  is  entitled  to  no  more  force  than  any 
ordinary  copy.  The  books  of  a  bank,  like  those  of  a  merchant  or 
shop-keeper,  must  be  proved  by  the  suppletory  oath  of  some  officer 

'=  Oliver  v.  Phelps.  20  N.  J.  L.  180.       (Mass.),  177;  Jermain  v.  Denniston, 
^^  Oliver  v.  Phelps,  21  N.  J.  L.  .597.       10  X.  Y.  276. 

"McKanelin    v.    Bresslin,    8    Gray  '^Manhattan    County    v.    Lydig,    4 

John.    (X.  Y.)    377. 


Sec.  125.]  Books  of  Corporation.  365 

or  agent  of  the  bank,  and  are  open  to  impeachment,  not  as  a  whole, 
but  as  to  separate  or  particular  items,  and  the  degree  of  weight 
to  be  given  them  will  depend  upon  the  general  accuracy  with 
which  they  are  shown  to  have  been  kept.^*'  Entries  in  the  books  of 
a  bank  by  a  person  since  deceased,  made  in  the  usual  course  of 
business,  and  by  one  whose  duty  it  was  to  make  them,  and  who 
had  no  interest  to  misrepresent  the  facts,  are  admissible  in  evi- 
dence.^' 

Bank  books,  proved  to  have  been  regularly  kept,  and  open  to 
the  inspection  of  the  president  of  the  bank,  and  probably  examined 
by  him  are  admissible  in  evidence  in  an  action  against  him  by 
the  receiver  of  the  bank  to  recover  of  him  on  an  account  due  the 
bank  as  it  stood  on  their  books ;  as  also  are  the  returns  made  by 
the  bank  to  the  bank  commissioners  during  his  presidency,  which 
could  not  have  been  made  up  without  including,  with  the  amount 
of  indebtedness  from  directors  to  the  bank,  the  account  against 
the  president,  and  which  were  examined  and  allowed  by  him.     The 
minute  book  of  a  bank  directors'  meeting,  regularly  kept  by  the 
cashier,  and  recognized  by  the  president  as  authority,  is  good  evi- 
dence of  who  were  present  and  what  was  done  by  the  board  at  a 
particular  meeting,  as  between  one  who  was  president  and  director 
of  the  bank  at  the  time  the  minute  was  made,  and  a  receiver  of  the 
bank  who  represents  the  corporation.^^ 

Sec.  125.  Books  of  Corporations  generally,  Rules  as  to  Admis- 
sion of. 

\Miere  the  books  of  a  corporation,  containing  a  record  of  its 
votes  and  acts,  are  kept  by  the  proper  officer,  they  are  evidence  of 
its  acts  and  proceedings,'  especially  as  between  it  and  its  stock- 

.Merchants'  Ban.  v.  Hawle,  7  Ga.  ^^Jf^^-i^^H^/g^H.^^iS; 

"Wheeler  v.  Walker.  45  N.  H.  355.  10  John.  (N.  Y.)    154;  Hamilton,  &c 

That   the   books   of   a    bank   are   evi-  Plank  Road  Co.  v.  Rice,  /   Barb.    (^. 

date  of   tL   receipts    and   payxnents  Y  )    If;  Meadow  Co.  v.  ShrewsbuxT 

ctatPf]    see  Union   Bank  v.   Knapp,   3  Church,   22  Is.   J.   L.   4i4 ,      l^itcn   %. 

pfck     RHss  )    96  Packard,  5  111.  69;      Penobscot  R.  R. 

-Olipv  V     Chadsey    7    R    I.    224;  Co.   v.    White,    41    Me.    512;      Penob- 

^.  ;c.,?"r&.'v.  .a.o..s,  Sr  s^.,  -.  H.^^^_C.^v.  B„..„,  g  .a. 


366 


Evidence. 


[Chap.  12 


holders/  and  in  actions  against  it,^  as  to  prove  the  organization 
of  the  company/  to  show  who  are  stockholders/  to  show  that^  a 
call  was  made^  and  its  amount/  to  prove  the  acceptance  of  its 
charter  or  amendments  thereto/  to  sliow  what  resolutions  were 
passed  or  votes  were  taken  at  a  meeting  either  of  the  stockholders 
or  directors/  and  w4io  were  elected  as  directors,  etc.,  of  the  corpor- 
ation.^   But  the  evidence  afforded  by  the  books  is  not  conclusive, 


Co.  V.  Schenck.  94  U.  S.  593;  Hagar 
V.  Cleveland,  36  Md.  476;  Hudson  v. 
Carman,  41  Me.  84. 

-  Chase  v.  Svcaniore.  &c.,  R.  R.  Co., 
38  111.  215;  Graff  v.  Pittsburgh,  &c., 
R.  R.  Co.,  31  Penn.  St.  489;  \Yheeler 
V  Walker,  45  X.  H.  355;  Union  Ca- 
nal Co.  V.  Slavd.  4  W.  &  S.  (Penn.) 
393:  New  England  Mfg.  Co..  v.  Van- 
dyke, 9  X.  J.  Eq.  498. 

'  3  The  records  of  a  corporation  are 
always  admissible  against  it.     Chesa- 
peake &  O.  Ry.  Co.  V.  Deepwater  Ry. 
Co.    (W.   Va.,    1905),  50   S.   E.  890; 
Tuskaloosa  v.   Wright,   11   Ala.   230; 
N.  E.  Mfg.  Co.  y.  Vandyke,  9  X.  J. 
Eq.  498;   Philadelpliia,  &c.,  R.  R.  Co. 
V.   Hickman,  28  Penn.   St.   318.     The 
book  of  minutes  of  a   corporation   is 
only  jyrima  facie  evidence  of  the  cor- 
rectness of  the  entries  made  in  it,  and 
the   appearance   of   the   entries   may, 
of  itself,  raise  so  strong  a  suspicion 
against  the  regularity  of  the  proceed- 
ino's,  that  no  weight  will  be  given  to 
them.       Van     Hook     v.     Somerville 
Mfg.    Co.,    5    X.    J.    Eq.    137.       And 
they   are   not   evidence   of   an    agree- 
ment alleged  to  have  been  made  by 
the  stockholders   as   individuals,   and 
not  intended  to  bind  the  corporation. 
Black   y.    Shreve,    13   X.   J.   Eq.   455. 
Xor    are    they    admissible    against    a 
member  of  the  company,  as  evidence 
of    his   private   contracts   or   dealings 
with    the    company.        In    respect   to 
them,  he  is  to  be  regarded  as  a  stran- 
ger; nor  indeed  are  they  evidence  in 
any  case,  unless  it  appears  that  they 
have  been  kept  by  the  proper  officer 
of      the      corporation.       Haynes      v. 
Brown,   36   X.  H.   545.       The  receipt 
book     of    a     corporation,     containing 
entries  of  payments  by  a  member,  is 
evidence  against   the   company,  with- 
out   producing    the    officer    by    whom 
they  were  countersigned,  and  are  not 


to  be  rejected  because  they  furnish 
evidence  of  other  payments  than 
those  for  which  they  are  properly  ad- 
missible in  evidence.  Xorth  America, 
&c.,  Assoc.  V.  Sutton,  35  Penn.  St. 
463.  Entries  of  credit  on  the  books 
for  stock  assigned,  are  worthless  if 
founded  on  a  transfer  which  did  not 
discharge  the  assignor's  liability. 
Hays  V.  Pittsburgh,  &c.,  R.  R.  Co., 
38' Penn.  St.  81.  Any  person  who 
saw  the  entries  made  in  the  corpo- 
ration books,  though  he  is  not  the 
secretary,  can  verify  the  books.  St. 
Lawrence,  &c.,  Co.  v.  Paige,  1  Hilt. 
(X.  Y.,  C.  P.)    430. 

*  Hudson  V.  Carman,  ante;  Grays 
y.  L\Tichburgh,  &c..  Turnpike  Co.,  4 
Rand.  (Va.)  578;  Ryder  v.  Alton, 
&c.,  R.  R.  Co.,  13  111.  516;  Bun- 
combe, &c..  Turnpike  Co.  v.  McCar- 
son,  1  D.  &  B.  (X.  C.)  306;  Wheeler 
v.  Walker,  45  X.  H.  355. 

'In  re  St.  George  Steam  Packet 
Co.,  3  De  G.  &  S.  31;  Company  of 
Carpenters,  &c.,  v.  Hayward,  1  Doug. 
373;  Collins  v.  Maule,  8  C.  &  P.  502. 
In  an  action  to  recover  a  subscription 
to  a  corporation,  the  subscription 
books  are  not  only  competent,  but 
generally  the  only  evidence  by  which 
the  liability  can  be  established. 
Marsh  v.  Colnett,  2  Esp.  665;  Peaks 
y.  Wabash  R.  R.  Co.,  18  111.  88 ;  Par- 
tridge y.  Badger,  25  Barb.  (X.  Y. ) 
146. 

''Barington  v.  Pittsburgh,  &c.,  R. 
R.  Co.,  34  Penn.  St.  358;  White 
Mountain  R.  R.  Co.  v.  Eastman,  34 
X.  H.  124. 

^Coffin  v.  Collins,  17  Me.  440; 
Hudson  V.  Carman,  ante. 

^Motgomery  R.  R.  Co.  v.  Hurst,  9 
Ala.  513;  Alabama,  &c.,  R.  R.  Co. 
V.  Xabors,  37  Ala.  489. 

MVood  y.  Jefferson  County  Bank, 
9  Cow.   (X.  Y.)    194. 


See.  125.]  Books  of  Cokpoeation.  367 

but  may  be  impeaehed  by  any  competent  evidence. ^^  The  record 
must  be  of  present  transactions.  Tims  a  record  in  a  corporation  book 
containing  a  directors'  certificate  reciting  that  certain  assets  had 
been  accepted  by  the  corporation  is  a  recital  of  a  past  transaction 
and  not  admissible  as  an  entry  in  a  book  of  account  kept  in  the 
regular  course  of  commercial  business  and  the  fact  that  the  minute 
was  made  in  the  record  book  of  the  corporation  gives  it  no  ad- 
ditional force  as  it  is  a  mere  self-serving  narration  of  past  events.^^ 
A  trustee  in  bankruptcy  of  a  corporation  is  a  lawful  custodian  of 
its  books  and  therefore  when  he  produces  them  in  court  they  come 
from  the  jDroper  custody  and  if  they  appear  from  inspection  to  be 
the  books  of  such  corporation  and  to  be  free  from  suspicion  or 
fraud  they  are  admissible,  and  it  is  immaterial  whether  it  be  di- 
rectly shown  that  the  books  were  received  by  the  trustee  from  the 
proper  custodian  of  the  corporation.  The  books  do  not  prove 
themselves,  but  when  they  are  produced  by  an  officer  of  the  corpor- 
ation, who  is  shown  to  be  the  proper  custodian  of  the  books,  and 
who  testifies  that  they  are  the  original,  and  the  court  by  inspection 
becomes  satisfied  that  there  is  nothing  in  the  books  to  raise  a  sus- 
picion of  fraud,  the  identification  is  sufficient  to  admit  them  in 
evidence.  Mere  proof  that  the  entries,  therein  are  in  the  hand- 
writing of  an  officer  of  the  corporation  does  not  seem  to  be  suffi- 
cient identification,  unless  it  appears  that  it  was  the  duty  of  such 
officer  to  make  the  entries.^^ 

While  it  is  the  general  rule  tliat  books  of  a  corporation  are  not 
evidence  in  actions  in  its  favor  against  strangers,^^  yet  this  is  not 
always  true,  and  in  some  instances  the  rule  is  departed  from.^* 

"Goodwin  v.  United  States  Annu-  stance    to    show    that   a    corporation 

ity,  &c.,  Co.,  24  Conn.  591.  had   taken   a   certain   location   under 

"  Norman   Printers    Supply    Co.    v.  statutory   authority.        The  books   in 

Ford   (Conn.,  1904),  59  A.  499.  such  case  can  be  used  only  as  memo- 

'' Lowry  Nat.  Bank  V.  Fiekett  (Ga.,  randa   to   assist   the  nieinory  of   the 

1905),  50  S.  E.  396.  corporation    officers    who    know    the 

"  Chase  v.  Sycamore,  &c.,  R.  E.  Co.,  facts.  The  court  in  discussing  the 
38  111.  215;  Hagar  v.  Cleveland,  36  admissibility  of  corporation  Ijooks. 
Md.  476;  Conn.  Life  Ins.  Co.  v.  holds  that  they  are  properly  admit- 
Schenck,  94  U.  S,  593;  Jones  v.  Trus-  ted  in  controversies  between  stock- 
tees,  &c.,  46  Ala.  626.  holders    on    considerations    of    conve- 

"The  records  of  a  corporation  are  nience,  and  also  of  sound  legal  prin- 

always   admissible   against   it   as   ad-  ciple   as  the   stockholders   havino-  the 

missions   as  those  of  a   private  indi-  right   to    inspect   the   books    must   be 

vidual  would  be.        But  the   declara-  presumed   not   to   allow   an   improper 

tions    of   a   corporation    as    contained  entry    to    remain    there    and    the    of- 

in  its  books   are   not  evidence   in   its  fleers  may  be  considered  their  agents 

favor  on  a  question  of  title,  as  for  in-  The  court  is  at  a  loss  to  explain  the 


368 


Evidence. 


[Chap.  12 


There  are  instances,  however,  in  which  the  books  of  a 
corporation  are  not  only  admissible,  but  are  also  re- 
garded as  the  best  evidence  of  the  facts  to  be  established,  even  in 
actions  between  strangers.  But  where  a  stock  exchange  corpora- 
tion is  a  private  corporation  its  books  are  not  admissible  as  evi- 
dence in  a  suit  to  which  the  corporation  is  not  a  party  except  as 
supported  by  the  testimony  of  the  person  who  wrote  the  books  if 
he  is  alive  and  can  be  produced.^^  But  the  exception  to  the  rule  is 
limited.  Thus,  they  are  the  proper  evidence  of  its  corporate  acts, 
and  while  they  are  in  existence  and  can  be  produced,  parol  evi- 
dence is  inadmissible  to  prove  the  acceptance  of  the  charter,  or 
what  persons  are  members  of  the  corporation.^*^     So  where  it  be- 


principle  on  which  the  corporation 
books  are  admitted  in  a  suit  by  a 
corporation  against  a  stockholder  to 
prove  his  membership  in  the  corpo- 
ration and  the  court  finds  that  in 
very  few  of  these  cases  was  sueli  evi- 
dence admitted  as  prima  facie  proof. 
In  many  other  cases  their  books  are 
admitted  simply  to  establish  a  de 
facto  corporation,  but  these  uses  of 
corporation  records  do  not  establish 
the  principle  that  a  corporation  may 
introduce  self  made  and  self  serving 
entries  upon  its  books  to  prove  title 
or  any  other  matter  directly  in  issue 
between  it  and  a  stranger.  Chesa- 
peake &  O.  Ry.  Co.  V.  Deepwater  Ry. 
Co.  (W,  Va.,  1905),  50  S.  E.  890.  To 
the  effect  that  the  books  of  a  corpo- 
ration are  not  admissible  in  its  favor 
in  a  suit  by  it  against  a  stockholder 
see  Trainor  v.  German-American  Sav- 
ings Loan  &  Building  Ass'n,  204  111. 
,616,  68  N.  E.  R.  650. 

"  Terry  v.  Birmingham  National 
Bank,  93  Ala.  599,  9  So.  299,  30  Am. 
St.  Rep.  87,  where  the  court  seems  to 
uphold  the  view  that  such  books  are 
admissible  only  as  admissions  by  the 
corporation,  unless  they  are  proved 
as  a  memorandum  of  a  witness. 

"Coffin  V.  Collins,  17  Me.  440.  If, 
however,  no  books  have  been  kept, 
or  if  they  are  lost  or  destroyed,  or 
cannot  be  obtained  by  the  party 
having  the  affirmation  of  the  issue, 
acceptance  of  the  charter  may  be 
proved  by  the  acts  of  the  alleged 
members  of  the  corporation.  Hud- 
son V.  Carman,  41  Me.  84.     In  an  ac- 


tion between  third  persons  the  rec- 
ords of  the  corporation  need  not  be 
produced  to  prove  the  authority  of 
the  president  to  do  a  certain  act,  but 
it  may  be  shown  by  other  evidence. 
But  so,  too,  it  may  be  shown  bj'  the 
records.  Cabot  v.  Given,  45  Me.  144. 
And  the  same  rule  prevails  as  to  the 
appointment  and  authority  of  a  cash- 
ier of  a  bank,  and  of  deposits  made 
in  the  bank.  Concord  v.  Concord 
Bank,  16  N.  H.  26.  And  this  is  so, 
even  though  the  charter  provides 
that  the  signature  of  the  president, 
attested  by  the  secretary,  shall  be 
taken  as  full  evidence  of  the  doings 
of  the  corporation.  Hankins  v. 
Shoup,  2  Ind.  342.  The  by-laws  of  a 
corporation,  when  they  have  been 
written  out  and  recorded  in  the  books 
of  a  corporation,  may  be  proved  by 
the  books.  But  when  they  rest  in 
parol,  they  may  of  course  be  proved 
by  parol.  Thus  by  the  charter  of  a 
bank  the  president  and  directors 
were  authorized  to  make  all  such  by- 
laws and  regulations  for  the  govern- 
ment of  the  corporation,  its,  officers 
and  members,  as  they  or  a  majority 
of  them  should  from  time  to  time 
.  think  fit.  In  an  action  by  the  bank, 
upon  a  certain  writing  being  given  in 
evidence,  -headed  "By-Laws,"  and 
which  purported  to  have  been  the 
by-laws  of  the  bank  while  its  busi- 
ness was  transacted  under  articles 
of  association  and  before  the  act 
incorporating  it  was  passed,  it  was 
objected  that  there  was  no  evidence 
that  the  writing  produced  had   been 


Sec.  125.]  Books  of  Corporation.  369 

comes  important  to  shoAv  that  a  certain  resolution  was  passed  at 
a  meeting  of  the  stockholders  or  directors,  the  records,  if  any, 
must  be  produced,  or  notice  to  produce  them  must  be  given  before 
secondary  evidence  of  their  contents  will  be  admitted.^^  So  where 
the  charter  provides  that  certain  agents  or  officers  shall  be  ap- 
pointed by  writing,  the  books  of  the  corporation  are  admissible,  in 
the  absence  of  the  written  appointment,  to  prove  the  appointment, 
but  when  tlie  statute  does  not  require  the  appointment  to  be  made 
in  writing,  and  it  does  not  appear  to  have  been  so  made,  it  may  be 
proved  by  parol. ^^  So  if  in  actions  between  third  persons  the 
question  is,  as  to  whether  a  certain  person  is  a  stockholder  of  a 
certain  corporation,  the  stock-books  of  the  corporation  not  onlv 
are  admissible,  but,  as  a  rule,  should  be  produced,  or  their  con- 
tents in  that  respect  shown,  where  the  party  cannot  produce  them. 
And  especially  is  this  the  case  where  the  charter  or  general  law 
provides  that  all  transfers  shall  b^  made  upon  the  books  of  the  cor- 
poration.^^ But  books  of  a  corporation  are  as  to  matters  pertain- 
ing to  the  dealings  of  the  corporation  with  one  of  its  members  as 
an  individual  not  books  of  a  public  nature.  So  in  a  suit  by  a 
corporation  to  enforce  an  indebtedness  of  a  member  the  books  "^are 

adopted    as    the   by-laws    of   the  cor-  land   v.    Ridgely,    1    H.    &   G.    (Md.) 

poration,    there    being    no    entry    or  324.     The  records  of  a  school  district 

memorandum       of       such       adoption  are  proper  and  legitimate  evidence  of 

among    the    minutes    of    its    proceed-  votes  for  such   district,   in   a   suit  to 

ings.     /  It  was  held,   1.  That,  the  au-  which    it   is    a    party.     South    School 

thonty   to   make   by-laws    being   spe-  District  v.   Blakeslee,   13  Conn,  2-^7 
cially  delegated  to  the  president  and  "  Montgomery   R.  R.   Co.  v.  Hurst 

directors,  and  no  particular  mode  of  9  Ala.  513.        '  '  ' 

exercising  it  being  prescribed  by  the  '*  Hamilton    v.    Newcastle,    &c..    R. 

charter,    it    was    no    more    necessary  R.  Co.,  9  Ind    359 
that    their    adoption     should    be    in  "  Coffin  v.  Collins,  anie.       But  see 

writing,  than  the  acts  or  contracts  of  Hare    v.    Warina,    3    M     &    W     36-:' 

any  other  duly  authorized  agents;   2.  Where    a    book    is    made    by    statut'e 

A,  1  '.u     u^^  P'"?''*''^  ^^'  ^'''^  cashier  prima    facie    evidence    of    pVoprietor- 

that  the  by-laws  in  question  were  al-  ship  of  shares   in  the   corporation    it 

ways    reputed    to    be    the   by-laws    of  is   admissible   as  such,  thouoh   it  ha« 

the  corporation,  and  with  the  excep-  been  irregularly  kept,  London  Grand 

tion  of  two  articles  were  so  observed  Junction    Railw.    Co.    v     Freeman     2 

byhim;   and  by  a  director,  that  they  M.     &     G.     606;      Birminsham'     &c 

were   delivered  to  him   as   such   upon  Railw.  Co.  v.  Locke,  1  Q.  B.  256  •  and 

his    election,    and    that    decisions    by  is  even  evidence  for  the  company  in 

the    board    of    directors    were    made  an    action    for    calls.     See    London    & 

agreeably    to    them    in    any    question  Brighton  Railw.  Co.  v.  Fairclouah    3 

upon  their  conduct    this  was  a  suffi-  Scott    N.    R.    68;      London   &    Grand 

cient  adoption  of  the  by-laws  by  the  Junction  Railw.  Co.  v.  Graham    1  O 

president  and   directors.     Md.    Ct.   of  B.  271  '" 

Appeals,   1827,  Union  Bank  of  Marv- 

24 


370  Evidence.  [Chap.  12 

admissible  only  when  brought  within  the  rule  admitting  private 
books  of  account.^*' 

In  some  of  the  states,  by  statute,  these  books  are  made  admis- 
sible for  certain  purposes  as  prima  facie  evidence ;  but  even  in 
ihose  cases  they  may  be  controverted  by  other  proof,  and  omissions 
therein  may  be  supplied  by  parol.^^  When  the  books  of  a  corpora- 
tion are  admissible  as  evidence,  if  there  is  nothing  on  their  face  to 
raise  a  suspicion  that  the  corporate  proceedings  have  been  irregular, 
they  will  be  treated  and  referred  to  as  evidence  of  the  legality  of  its 
jnoceedings.  Thus,  where,  by  the  statute,  a  certain  proportion  of 
the  corporators  were  required  to  be  present  at  a  meeting  to  pass 
a  certain  vote,  it  was  held  that  a  statement  in  the  record  that 
"  upon  due  invitation  the  corporators  met,  etc.,"  amounted  to 
evidence  that  the  requisite  number  were  present.^^  The  books  of  a 
corporation  are  not  evidence  to  prove  a  usage,  by  entries  of  acts  of 
submission  by  particular  persons  to  the  exercise  of  rights  insisted 
on,  without  proof  aliunde  of  the  situation  of  those  persons  and  their 
relative  position  in  reference  to  the  corporation-"^  The  books  of  a 
banking  corporation  have  been  held  admissible  as  evidence  in  a 
suit  on  a  note  brought  by  the  bank  against  the  indorser,  a  stranger, 
to  prove  the  election  of  its  officers ;  and  this  was  held  sufficient, 
prima  facie,  to  show  that  the  bank  had  complied  with  the  previous 
requisitions  of  their  charter,  and  that  it  had  a  legal  existence.^* 

The  books  of  a  corporation  have  been  allowed  as  evidence  for 
them,  in  suits  against  strangers,  in  aid  of  the  testimony  of  a  witness 
who  had  made  an  entry  therein,  the  truth  of  which  was  in  ques- 
tion.^^  This  seems,  however,  to  have  been  upon  the  principle  which 
allows  memorandums,  made  of  a  transaction  at  the  time,  to  go  to 
the  jury,  under  certain  circumstances,  along  with  the  testimony  of 
the  person  who  made  it.  The  court  slightly  advert  also,  in  support 
of  their  decision,  to  the  doctrine  allowing  previous  consistent 
declarations  of  a  witness  to  be  given  in  evidence  in  corroboration 
of  his  oath.    In  this  respect  the  entries  in  the  books  of  a  corporation 

20  Trainor  V.  German- American  Sav-  (Penn.)    29;   Wood   v.    Jefferson    Co. 

ings  Loan  &  Building  Ass'n,  204  111.  Bank,   9   Cow.    (X.   Y.)    194;      Grays 

616,  68  X.  E.  R.  650.  v.  Turnpike  Co..  4  Rand.   (Va.)   578. 

2'  Thome  v.  Travellers'  Ins.  Co..  80  '^  Davis  v.  Morgan.   1  Price,  77. 

Penn.  St.   15;     Lavmouth  v.  Koehler,  "Wood  v.  The  Jefferson  Co.  Bank, 

35  Mich.  22;   Reynolds  v.  Schwimpus,  9  Cow.    (X.  Y.)    194,  205:        State  v. 

27  Ohio  St.  311;   Board  of  Education  Buchanan,   1   Wright    (Ohio),  233. 

V.  Moore,  17  Minn.  412.  ^Farmers    &    ^Mechanics'    Bank    v. 

"Com.     V.     Wallper,     3     S.     &     R.  Boraet,  1  Rawle   (Penn.),  152. 


Sec.  125.]  Books  of  Cobpoeation.  371 

would  obviously  stand  upon  the  same  footing  as  a  similar  entry 
m  a  tradesman's  book.  And  there  are  many  cases  where  the  en- 
tries m  the  books  of  banks  have  been  both  admitted  and  rejected 
upon  grounds  which  are  well  applicable  to  books  of  individuals' 
lhe_  books  of  incorporated  banks,  etc.,  stand  upon  a  different 
footing,  generally,  in  this  country,  from  the  books  of  the  Bank  of 
±.ngland.  The  former  are  not  public  books,  in  the  sense  in  which 
that  term  is  understood  by  the  courts,  except  as  among  the  mem- 
bers of  the  corporation.  In  other  cases,  the  rules  of  admissibility 
m  regard  to  them,  as  well  as  the  mode  of  authenticating  entries  in 
them,  are  not  essentially  variant  from  those  which  relate  to  books 
of  a  mere  private  nature.^^ 

The  corporation  of  a  city,  and  municipal  corporations  generally, 
differ  from  a  private  corporation  in  respect  to  the  matters  we  ^-e 
considering.    An  agent  of  the  corporation  of  the  city  of  New  York 
for  instance,  sued  for  acts  done  by  order  of  the  corporation,  in 
removing  obstructions  in  a  street,  may,  in  his  individual  capacity, 
avail  himself  of  the  minutes  and  books  of  the  corporation  in  his 
IT'*„      -^^      ^^^'^  corporation  of  the  city)   "more  nearly  re- 
sembles,   say  the  court,  adverting  to  the  distinction  noticed,  "  the 
legislature  of  an  independent  State,  acting  under  a  constitution 
prescribiug  its  powers.     The  acts  of  this  corporation  concern  the 
rights  of  tJie  inhabitants  of  the  city ;  it  exercises  a  delegated  power 
not  for  Its  own  emolument,  but  for  the  interests  of  its  constituents 
and  while  it  keeps  within  the  limits  of  its  authority,  the  constitu- 
ents are  bound  by  the  acts  of  the  corporation.     When  the  citizen 
wishes  to  show  those  acts,  he  must  resort  to  the  authentic  record  of 
them,  which  is  the  original  minutes  of  the  corporation."     Thi.   it 
seems,  is  the  best  evidence."  ^' 

_  The  official  tax-books  of  the  corporation  of  the  city  of  Wash- 
ington, made  up  by  the  register,  from  ths  original  returns  of  the 
assessors.laid  before  the  board  of  appeals,  are  evidence  to  show  the 
tax  assessed  upon  an  individual;  the  assessors'  original  returns 
need  not  be  produced.^^  "'  The  book  was  made  out  by  an  officer  in 
pursuance  of  a  duty  expressly  enjoined  by  law.  This  not  only 
makes  the  tax-book  evidence,  but  the  best  evidence  which  can  be 

iiey  V.  The  Com,  5  Rand.    (Va.)   66.  ' 


372  Evidence.  [Chap.  12 

given  of  the  facts  it  contains."  In  Kentucky,  the  minutes  of  the 
trustees  of  Louisville  and  other  towns  in  the  commonwealth  are 
competent  evidence  on  trials  as  to  town  property.  But  there  is 
no  provision  authorizing  their  verification  by  the  clerk's  certificate. 
It  would  seem  to  follow  then,  say  the  court,  that  they  ought  to  be 
verified  b^-  oath,  and  proved  to  be  true  copies  from  the  real  book 
of  the  trustees,  kept  by  tlie  proper  officer  and  recognized  by  the 
board  as  such.^^  But  on  writ  of  error,  unless  the  objection  to  the 
admissibility  in  the  court  below  was  distinctly  on  the  ground  that 
the  paper  was  not  sufficiently  authenticated,  the  court  will  not 
notice  it,  but  will  only  rgeard  the  objection  as  one  of  relevancy  or 
competence. 

In  Virginia  the  statute  vested  certain  trutsees  with  one  hunderd 
acres  of  land  to  be  appropriated  partly  as  a  present  to  settlers  and 
partly  for  the  benefit  of  the  proprietors ;  held  that  the  books  and 
other  records  of  the  trustees,  called  in  the  case  a  corporation,  being 
first  shovn  to  be  in  the  handwriting  of  the  proper  officers  of  the 
board,  were  admissible  in  evidence.  The  court  said  the  trustees 
were  established  for  public  purposes ;  and  their  books  were  the 
best  evidence  of  their  acts  and  proceedings.^"  And  in  Massachu- 
setts, a  proprietary  book  of  ancient  date  has  been  held  admissible, 
without  proving  the  entries  by  the  clerk  of  the  proprietors  who  made 
them.^^  The  sales  book  of  the  proprietors  of  Cincinnati  has  been 
admitted  as  to  early  sales.^^  An  ancient  book  of  records  of  the 
town  of  Boston,  entitled  the  Book  of  Possession,  which,  although 
not  regularly  authenticated,  had  been  preserved  among  the  records 
of  the  town,  was  held  competent  and  sufficient  evidence  to  establish 
ancient  titles  under  allotments  from  the  town.^^  A  book  of  the 
proprietors  of  common  lands  was  allowed  in  evidence  in  tracing 
title,  on  a  witness  stating  that  it  had  been  formerly  in  the  pos- 
session of  his  grandfather,  whose  executor  had  it  thirty  years, 
and  then  delivered  it  to  the  witness ;  the  presumption  from  lapse 
of  time  being,  say  the  court,  that  the  witness  had  the  lawful 
custody  of  it,  and  there  being  no  evidence  of  the  present  existence 
of  the  proprietary  with  a  clerk  to  keep  the  books  and  records ;  and 

^'Dudlev  V.  Gravson,  6  Mon.  (Ky.)  Rogers,  1  Mass.  159;  Pitts  v.  Temple, 
259.  "  ^  '  2  id.  538. 

™Owi^gs   V.    Speed,   5    Wheat.    (U.  ^-Williams     v.     Burnet,     1    Wright 

S.)   ^20.  (Ohio),  53. 

-'The    Proprietors    of    Monunioi    v.  ^' Rust  v.  The   Boston   Mill   Corpo- 

ration, 6  Pick.    (Mass.)    158. 


Sec.  125.]  Books  of  CoRPOEATiOiSr.  373 

there  being  no  place  appointed  by  law  for  the  deposit  of  such  books 
when  a  proprietary  becomes  extinct.^'*  The  town  record  books,  in 
jSTew  Hampshire,  may  be  used  by  selectmen  in  justifying  their 
doings  as  such,  to  show  their  appointment  by  a  meeting  of  the 
inhabitants ;  and  also  to  show  a  tax  voted  at  such  meeting. ^^  The 
record  of  the  appointment,  and  proof  that  the  selectmen  had  acted 
under  it,  was  held  in  this  case  proper  evidence  to  be  submitted 
to  the  jury,  as  in  favor  of  the  selectmen,  from  which  to  infer  that 
the  meeting,  at  which  the  selectmen  were  appointed,  was  a  legal 
one  in  all  respects. ^^  It  seems  that  a  record  like  the  above,  when 
erroneous,  may  be  amended  by  the  clerk  so  as  to  conform  to  the 
truth,  by  motion  to  the  court  on  behalf  of  the  selectmen.^^  The 
chest  of  an  incorporated  company,  kept  by  their  clerk  for  the  time 
being,  is  the  proper  custody  for  old  documents  relative  to  the  ad- 
mission of  freemen  and  other  acts  of  the  company  ;  but  the  private 
house  of  a  former  deceased  clerk  is  not  the  proper  custody  for  a 
convention  dated  in  the  reign  of  Edward  IV,  between  the  then 
Prince  of  Wales  and  the  corporation.^^  The  book  of  a  corporation 
must  in  general  be  identified ;  and  it  must  be  shown  that  the  book 
was  kept  an^l  the  entries  were  made  by  the  proper  officer,  or  some 
other  person  in  his  necessary  absence-'^^  It  is  not  enough  that  the 
book  is  in  the  handwriting  of  a  person  stated  therein  to  be  secre- 
tary, and  that  the  witness  producing  it  received  it  from  such  per- 
son.^'' ^S^or  is  it  sufficient  merely  that  the  book  is'  proved  by  a 
former  secretary  or  clerk  to  have  been  handed  down  to  him  as  the 
corporation  book.^^  In  England,  mere  sworn  copies  of  the  books  of 
the  Bank  of  England  are  evidence.  It  is  otherwise,  as  a  general 
rule,  in  respect  to  the  books  of  banks  in  this  country.  In  assumpsit 
against  a  bank  on  a  bill  drawn  by  its  president,  his  authority  to 
draw  was  denied.  To  prove  one  item  in  his  case,  the  plaintiff 
offered  examined  copies  from  the  discount-book  of  the  Bank  of 
Pennsylvania,  a  third  person.  It  was  held  inadmissible,  as  the 
original  should  be  produced.     The  court  denied   that  this  came 

^*  Tolman      v.      Emerson,     4     Pick.  ^^  Shrewsbury   v.    Hart,    1    C.   &    P. 

(Mass.)    IGO.  114. 

^Bishop  V.  Cone,  3  X.  H.  513;  Mc-  ^^  Highland    Turnpike    Company    v, 

Fadden  v.  Kingsbury,   11   Wend.    (N,  McKean,    10    John.    154;      Gaines    v. 

Y.)   6G9.  The  Tombeckbee  Bank,  1  Ala.  50. 

^"Bishop  V.  Cone,  ante.  '^Highland    Turnpike    Company    v, 

"Well   V.    Battelle,    11   Mass.    477;  McKean,  ante. 

Taylor  V.  Henrv,  2  Pick.   (Mass.)   397.  "Martin     v.     Gunby,     2    H.    &    J. 

(Md.)    248.     - 


374  Evidence.  [Chap.  12 

■within  the  rule  that  where  an  original  is  of  a  public  nature  and 
admissible  in  evidence,  an  examined  copy  is  evidence  per  se.  To 
make  it  admissible,  if  so  at  all,  there  must  be  proof  that  the 
original  was  made  by  an  officer  of  the  bank;  the  officer  himself 
to  prove  this,  if  to  be  found;  and  if  not,  his  handwriting  to  be 
proved.  The  court  admitted  the  contrary  rule  as  to  the  Bank  of 
England,  but  said  that  their  books  are  truly  of  a  public  nature. 
But  to  give  that  name  to  the  books  of  the  Bank  of  Pennsylvania, 
and  on  the  same  principle  to  those  of  incorporated  insurance  com- 
panies, etc.,  with  which  the  country  has  been  inundated,  might 
produce  serious  consequences.  "  We  know,"  say  the  court,  "  that 
these  books  are  often  badly  kept ;  and  it  would  be  dangerous  to 
admit  coj^ies  in  evidence  when  the  originals  may  be  easily  had; 
nor  should  the  originals  be  admitted  without  proof  by  whorii  the 
entries  were  made.*^  In  another  case,  it  was  held  that  the  entries 
in  a  book  of  an  incorporated  bank  were  not  admissible,  as  be- 
tween third  persons,  to  show  a  deposit  of  money,  unless  it  be  first 
proved  that  the  clerk  who  made  the  entries  was  dead,  or  beyond 
the  reach  of  the  process-;  and  this,  though  it  was  admitted  that 
the  entries  in  question  were  made  by  J.  M.,  who  was  clerk  at  the 
time.  The  rule  has  subsequently  been  laid  down  thus :  "  I  take 
it  to  be  a  general  and  established  principle,  that  neither  copies  of 
the  books  of  an  incorporated  bank,  nor  the  books  themselves,  are 
admissible  against  any  other  than  the  bank,  or  without  proof 
being  first  made  by  whom  the  entries  in  the  book  were  made ;  and 
that  the  proper  witnesses  to  make  such  proof  are  the  clerks  by 
■whom  the  entries  were  made,  if  to  be  found  within  the  jurisdiction 
of  the  court;  but  if  dead  or  out  of  the  jurisdiction  of  the  court, 
proof  may  be  made  of  their  handwriting."*^  It  seems,  however, 
according  to  those  cases,  that  where  a  bank  is  located  at  a  great 
distance  from  the  place  of  trial,  or  where  the  books  are  required 
to  be  in  different  places  at  the  same  time,  an  examined  copy  from 
the  books,  with  proof  that  the  original  entries  were  made  by  an 
officer  of  the  bank  (proved  by  himself,  if  to  be  found,  and  if  not, 
with  proof  of  his  handwriting),  would  be  competent  evidence. 
Mere  certified  copies  would  not  be  admissible,  unless  rendered 

"  Ridgway  v.  Farmers'  Bank,  12  S.  "  Philadelphia   Bank  v.   Officer,    12 

&  R.    (Penn.)   256.  S.   &   R.    (Penn.)    49;   Goehenauer   v. 

Goad,  3  Penn.  244. 


Sec.  125.]  Books  of  Coepoeation. 


6iO 


so  by  statute.''^  In  Massachusetts,  it  has  been  said  that  clerks  of 
religious  and  other  corporations,  and  other  recording  officers,  may 
certify  coioies  of  their  records;  and  in  doing  so,  act  under  the 
obligation  of  an  oath  of  office,  and  their  certificates  are  evidence.*^ 
The  general  rule,  however,  is  otherwise,  and,  unless  through  the 
intervention  of  a  statute,  mere  certified  copies  of  corporation 
records  and  minutes  are  inadmissible.'"'  The  proceedings  of 
churches  and  ecclesiastical  bodies  generally  may  be  proved  by 
parol,  though  minutes  are  kept  of  them  by  their  clerks  f  and  in 
the  case  last  cited  the  minutes  of  a  presbytery  were  held  evidence 
to  prove  certain  facts,  e.  g,,  the  suspension  of  a  minister,  on  due 
complaint  made,  but  not  to  show  the  facts  upon  which  it  was 
founded.  The  record  of  a  certificate  of  incorporation  of  a  re- 
ligious society  is  not  evidence  of  the  fact  of  incorporation.  The 
certificate  itself  must  be  produced.*^  Where  it  was  referred  to 
the  court  to  determine  whether  a  book  produced  was  the  record  of 
a  church,  it  appearing  that  during  the  whole  time  it  was  kept,  the 
ministers  of  the  parish  and  pastor  of  the  church  kept  it  wholly  or 
principally,  he  being  the  proper  officer  to  keep  such  a  record ;  and 
being  kept  in  the  form  of  a  record,  and  containing  a  regular  state- 
ment of  the  admission  of  members,  the  choice  of  officers,  and  the 
transaction  of  the  regular  business  of  the  church ;  held  that  such 
book  was  to  be  considered  the  record  book  of  the  church. ^^  The 
receipt  book  of  a  corporation,  containing  entries  of  payments  by  a 
member,  is  evidence  against  the  company,  wdthout  producing  the 
officer  by  whom  they  were  countersigned.  Such  entries  are  not 
to  be  rejected  because  they  furnish  evidence  of  other  payments 
than  those  for  which  they  are  properly  admissible  in  evidence.^" 
But  entries  in  the  books  of  an  incorporated  company  are  not  evi- 
dence against  a  member  of  the  company,  in  respect  of  a  contract 
entered  into  by  him  with  the  company,  although  the  act  by  which 
the  company  is  incorporated  authorizes  each  member  to  inspect 
and  take  copies  of  the  books  or  any  part  of  them.     So,  although  the 

"Hallowell,   &c.,    Bank   v.    Hamlin,  639:   Dow  v.  Hinesman,  2  Aik.    (Vt.) 

14  Mass.  178.  18;      Eiddle    v.    Stevens,    2   S.   &  R. 

*^Oakes   v.   Hill.    14    Pick.    (Mass.)  (Penn.)    537. 

442;   Sawyer  v.  Baldwin,   11   id.  494;  '  ^^  Jackson  v.  Leggett,  7  Wend.    (N. 

Stebbins  v.  Jennings,   10  id.   188.  Y.)    377. 

"  Dudley  V.  Grayson.  6  Men.   (Kv.)  "Sawyer     v.     Baldwin,     11     Pick. 

259;   Hallowell,  &c.,  Bank  v.  Hamlin,  (Mass.)   492. 

14  Mass.  178.  "^  North    American    Building    Asso- 

"  Charleston    v.    Allen,    6    Vt.    633,  ciation  v.  Sutton,  35  Penn.  St.  463. 


376      "  Evidence.  [Chap.  12 

entries  relate  to  transactions  at  a  meeting  at  which  such  member 
was  present,  it  appearing  that  the  entries  were  made  after  the 
meeting  had  terminated,  from  memoranda  made  by  the  clerk  at 
the  meetine:."^  Xor  are  the  minutes  of  a  corporation  evidence  of 
an  ag-reement  alleged  to  have  been  made  by  stockholders  as  in- 
dividuals, and  not  intended  to  bind  the  corporation-^^ 

"Hill  V.  Manchester  Water  Works  « Black  v.  Shreve,  13  N.  J.  Eq.  455. 

Co.,  2  N.  &  M.  573. 


CHAPTEE  XIII. 

Entries  Made  in  Course  of  Business  ;  Shop  and  Account 

Books. 

Section  126.  Admissibility  of,  generally. 

127.  Rule  when  better  evidence  exists. 

128.  Rule  in  different  States. 

129.  Effect  of  alterations,  etc.;  of  what  things  they  may  be  used  a» 
evidence. 

130.  Of  what  things  they  are  not  evidence. 

131.  What  are  proper  subjects  of  book  charge. 

132.  Proof  of  and  manner  of  making  entries.     Transcriptions. 

Sec.  126.  Admissibility  of,  generally. 

The  admission  of.  account  books  and  other  records  kept  in  the 
regular  course  of  business  is  a  portion  of  the  law  of  evidence  now 
in  a  state  of  transformation.  In  the  days  when  the  hearsay  rule 
was  first  conceived  business  was  done  in  a  small  competitive  way 
by  traders  with  a  limited  number  of  clerks  and  it  was  no  hardship 
to  require  them  to  support  their  books  by  the  testimony  of  those 
who  knew  the  facts  and  made  the  entries.  But  this  is  often  im- 
possible to  the  great  corporations  of  the  twentieth  century.  Where 
a  company  has  in  its  employ  an  ever-changing  force  of  thousands 
of  men  and  a  score  of  bookkeepers,  the  duties  of  each  so  narrow 
that  it  might  require  a  dozen  witnesses  to  prove  the  payment  of  a 
single  dollar,  the  strict  application  of  the  hearsay  rule  might  often 
require  a  denial  of  justice.  The  more  progressive  courts  are  real- 
izing more  and  more  that  they  are  not  living  in  the  days  of  Littel- 
ton  and  Coke,  nor  even  of  Lord  Mansfield ;  that  they  are  facing 
problems  which  these  former  leaders  knew  not  of  and  that  the 
law  in  this  particular,  as  in  all  others,  must  grow  with  the  fabric 
of  the  commercial  world.  They  may  cloak  the  change  in  a  new 
application  of  the  best  evidence  rule,  but  it  is  a  change,  and  one 
to  which  the  necessities  of  modern  business  are  driving  them  on. 
The  new  rule  may  be  that  a  document  is  admissible  coming 
from  the  proper  custody  made  in  the  regular  course  of  business 
by  one  whose  duty  it  was  to  make  it,  with  no  incentive  to  mis- 

(377) 


378  ■  Evidence.  [Chap.  13 

represent,  even  without  the  oaths  of  those  who  made  the  entries 
and  knew  the  facts,     '^o  court  has  vet  reached  this  goal,  but  it 
is  submitted  all  are  tending  toward  it  and  some  of  the  recent  de- 
cisions have  blazed  far  the  way  towards  its  attainment.^     It  has 
always  seemed  to  us  that  any  rule  which  excludes  original  books 
of  entry  is  one  clearly  opposed  to  sound  policy  and  the  ascertain- 
ment of  the  truth,  and  that  the  only  really  sensible  rule  is  to  ad- 
mit such  books  in  proper  cases,  and  leave  it  for  the  jury  to  say 
what  degree  of  credit  shall  he  given  to  them,  in  view  of  their  ap- 
pearance, the  manner  in  which  they  are  'kept,  and  all  the  circwiv- 
stances  of  the  case,  including  the  evidence  in  support  of  or  in  coiir 
tradiction  of  the  entries.     And  this  is  practically  the  rule  in  sev- 
eral of  the  States.     Thus,  in  Delaware  a  notched  stick,  accom- 
panied by  the  oath  of  the  party,  is  held  to  be  a  good  book  of  origi- 
nal entries  where  it  is  the  only  method  by  which  the  party  keeps 
his  accounts,^  and  so  are  scraps  of  paper  upon  which  items  of 
debt  or  credit  are  originaly  entered,^  and  the  book  of  original 
entries  kept  by  a  party  is  evidence  as  to  any  matter  which  is  a 
proper  subject  of  book  charge,^  although  some  of  the  entries  are 
falsified,^  and  although  the  account  is  kept  by  arbitrary  signs  like 
dots  and  crosses,^  and  where  charges  are  originally  made  on  a 
slate  and  transferred  to  a  day  book,  the  day  book  is  treated  as  an 
original  book  of  entries.^    A  book  of  accounts  of  original  entries, 
although  not  always  containing  the  material  necessary  for  a  com- 
plete account,  if  honestly  kept,  may  be  admissible  as  independent 
evidence  where  made  in  the  usual  course  of  business  and  shelving 

^See    for   example,   Fireman's   Ins.  (Del.)    124.      Nor    do   alterations   or 

Co.  V.  Seaboard  Air  Line  Ry.    (N.  C,  erasures.       Sargeant   v.   Pettibone,    1 

1905),  50  S.  E.  452,  fully  noted  at  p.  Aik    (Vt.)    355.           .,.,.,      ,„„., 

392    post.  'Gather  v.   Dowerell    (^.eb.,   1904), 

^Rowland     v.      Burton,      2      Harr.  99^  N    W.  35                  ^  :,r,  ^  a    o-xo    c  a 

(Del  )    288         And    in    Vermont   the  ^  Place  v.  Baugher,  159  Ind.  232,  64 

author  once  had  occasion  to  put  in  N.  E.  852,  where  book  was  made  up 

e^adence.    as    the    book    of    original  from    temporary    memoranda        See, 

entries   of   a   party,   pieces   of  boards  also,     Ewart     v      Morrell      5     Harr 

saved    out    of^he    defendant's    corn  (Del.)    126;     Whitney  v    Sawyer    11 

crib,   upon   which   he   had   marked   as  Gray    (Mass.       242;   Barker   v.    Has- 

deli;ered    the    number    of   bushels    of  kell    9   ,d^218;   Morns   v.   Bnggs,   3 

grain  which  he  had  delivered  to  the  id.    342 ;   Faxon    v.    Ho  lis,    13    Mass. 

plaintiff   under   a   contract,   to   prove  42/;      Gibson     v.      Bailey      13     Met 

delivery,    and,    although    objected    to,  (Mass  )    53/ ;      Smith  v.   Sanford    12 

the  boards  were  admitted  by  Peck,  J.  Pick.   (Mass.)    139      But  f  ^  Ogden  v. 

3  Smith   V.    Smith,   4    Harr.     (Del.)  Miller,   1   Browne    (Penn.       14'  ;   For- 

532:   Hall  v.  Field,  4  id.  533.  ^yth   v.    ^orcross     5    Watts      Penm   . 

'Townsend    v.    Townsend,    5    Harr.  432:   Kess  er   v.   McConahy,    1    Raule 

(Del  )    126.  (Penn.),  43o,  contra. 

*Gosewich     v.     Zebley,      5      Harr. 


^ec.  12C.J  Entries  in  Course  of  Business.  379 

credits  as  well  as  charges  made.  The  manner  of  keeping  the  ac- 
counts and  their  piiriDose  is  the  important  consideration,  rather 
than  the  form  of  the  books  themselves.^  There  is  a  doubt  whether 
this  rule  extends  to  memoranda  made  by  the  witness  contem- 
poraneously with  the  fact  they  purport  to  record.  In  New  York 
they  are  held  admissible  and  not  in  Massachusetts.^  But  in  all 
cases  the  books  must  be  supplemented  by  the  oath  of  the  party /° 
and  the  book  alone  is  not  sufficient  to  bind  the  party  charsecl^^ 
And  substantially  the  same  rules,  prevail  in  Connecticut,  Cali- 
fornia, Vermont,  Massachusetts,  New  Hampshire,  Tennessee, 
Maryland,  Louisiana,  Pennsylvania,  South  Carolina,  Xorth  Car- 
olina, Virginia  and  several  other  States,  either  as  a  common-law 
rule  or  by  virtue  of  express  statutory  provisions. ^^  In  all  the  other 
States  such  books  are  admissible  under  certain  restrictions,  which 
are  generaly  peculiar  to  each  State.  It  would  hardly  be  practica- 
ble here  to  point  out  in  detail  these  peculiar  restrictions,  as  they 
are  of  no  consequence  except  to  practitioners  in  the  various  States, 
who  are  presumed  to  be  familiar  with  the  rules  in  this  respect  in 
their  own  courts.  In  some  of  the  States,  particularly  New  York 
and  Georgia,  the  admission  of  a  party's  books  depends  upon  the 
circumstance  whether  better  evidence  of  the  facts  can  be  had,^^ 
the  rule  being  that  such  books  are  admissible  upon  proof  by  the 
party  offering  them ;  1.  That  he  kept  no  clerk,  or  else  the  clerk  is 
dead,  or  otherwise  inaccessible;  2.  Upon  proof  that  the  book 
tendered  is  his  original  book  of  entries,  his  own  oath,  being  suf- 
ficient for  this  purpose ;  3.  Upon  proof  by  his  customers  that  he 
usually  kept  correct  books ;  4.  Upon  inspection  by  the  court  to  see 
if  the  books  are  free  from  the  suspicion  of  fraud.^* 

*  Post  V.  Kenerson,   72  Vt.   341,  47  "  Bracken  v.  Dillon,  64  Ga    243 

A.  1072,  82  Am.  St.  Rep.  948.  "Hull  v.   Carey,   5   Ga.  239:   sfade 

»_Bates    V.    PreWe,    151    U.    S.    149,      v.    Nelson.    20   Ga.    365;      Merchants' 

fo'i.-?   \S^-  ^^'V  o  .r  ^^""^   ^-  T^y'°^'  21    id.   334;      Bailey 

/r^,!o^ -''''"    ^-    1^^""^.^^'  3  Harr.  v.   Barnelly,   23   id.   582;   Chastain   v-. 

ii^y  ,,  ^'     .  .  .r  '^^owrx,  31  id.  346;   Crawford  v.  Stet- 

Walker     v.     leatman,  5  Harr.  son,  51  id.   121;  Petit  v    Teal    57  id 

^^n     f^^"        c  .     r.  ,  ^^^'      ^^^'^^^   V-   Po^^-ell,   61  'id.    30; 

Cook     V.     Swan,    5     Conn.     140;  Now  embodied   in   the   Code,    §    3777 

Stiles     V.     Hamin      21     id.     507;     Le  In  New  York  the  rule  is  substantially 

Fraiic  V.  Hewitt.  7  Cal.   186;   Landis  the    same    as    above,    it    bein^r    that 

V.    Turner     14    Cal     573;     Prime    v.  where  there  are  regular  dealings   be- 

ff  M  V     /M       \  ^1?i'   ??"    ''•    ^^xT*'?'  *'''"""    *'^^    Pl^>"tiff    an<i    defendant. 

1-       io    Al^^''''-Li^l;  ^^''°"  ''•  ^°^-  *^"d    '^^   's    P»-oved    that    the    plaintiff 

IS     13   Mass^  427;  Bassett   v.    Spof-  keeps   honest    and    fair   books   of   ac 

ford,  11  Is.  H.  16/.  count;      that    some    of    the    articles 


380 


Evidence. 


[Chap.  13 


Sec.  127.  Rule  when  better  Evidence  exists. 

In  these  States,  as  well  as  in  some  others/  the  rule  excludes  the 
books  when  better  evidence  of  the  facts  is  attainable,  and  the  books 
are  admissible  when,  from  necessity,  they  aflford  the  best  evidence 
of  the  facts  contained  therein. 


charged  to  the  defendant  have  been 
delivered  to  him;  and  that  the  plain- 
tiff keeps  no  clerk,  his  books,  from 
necessity,  are  admissible  in  evidence, 
for  the  consideration  of  the  jury. 
Vosburijh  v.  Thaver,  12  John.  (N. 
Y.)  461;  Linnelfv.  Sutherland,  11 
Wend.  (X.  Y.)  568;  Tomlinson  v. 
Borst,  30  Barb.  (N.  Y.)  42;  Conklin 
V.  Stamler,  2  Hilt.  (N.  Y.)  422; 
Foster  v.  Coleman,  1  E.  D.  Smith 
(X.  Y.),  85;  Houptman  v.  Catlin,  id. 
729;  Morrill  v.  Whitehead,  4  id.  239. 
But  where  the  party  kept  a  clerk, 
proof  of  his  decease  is  essential  to  let 
in  the  books,  and  the  circumstance 
that  he  is  out  of  the  jurisdiction  is 
not  enough.  Brewster  v.  Doane,  2 
Hill   (X.  Y.),  537. 

'  Wheeler  v.  Smith,  18  Wis.  651 ; 
Eastman  v.  Moulton,  3  X.  H.  556 ; 
Kennedy  v.  Fairman,  1  Hayw. 
(Tenn.)  458.  In  Texas  the  rule 
seems  to  be,  that  where  a  witness  is 
called  to  prove  a  book  of  account, 
he  should  be  inquired  of  as  to  the 
whole  method  of  keeping  the  books, 
who  made  the  different  entries,  etc., 
and  if  the  testimony  of  such  wit- 
ness is  insufficient  to  prove  the  ac- 
count, other  witnesses  should  be 
called;  and  when  the  plaintiff  rests 
his  case,  the  defendant  may  move 
to  exclude  all  items  not  proved  by 
competent       evidence.  Ward        v. 

Wheeler,  18  Tex.  249;  Burnham  v. 
Chandler,  15  Tex.  441 ;  Townsend 
V.  Coleman,  18  Tex.  418;  Taylor  v. 
Coleman,  20  Tex.  772.  In  an  action 
upon  promissory  notes  given  upon 
settlement  of  account,  the  defend- 
ants having  pleaded  in  reconvention 
that  the  plaintiff  was  liable  for  cer- 
tain book  accounts  due  them  which 
the  plaintiff  had  undertaken  to  col- 
lect and  apply  to  the  notes  sued  on, 
it  was  held  that,  in  the  absence  of 
evidence  establishing  such  liability 
of  the  plaintiff,  it  was  error  to  ad- 
mit   the    account    books    in    evidence 


Avithout  definite  explanation  of  the 
use  to  be  made  of  them  by  the  jury. 
Compton  V.  Young!  26  Tex.  644. 
In  South  Carolina,  where  the  entries 
in  the  plaintiff's  book,  which  was 
offered  in  evidence,  were,  in  part 
made  from  memoranda  taken  by 
his  slave  at  the  time  of  the  delivery 
of  the  articles,  and  partly  from 
memoranda  made  by  defendant* 
themselves,  it  was  held  that  the 
entries  were  not  admissible  in  evi- 
dence, and  that  the  plaintiff  was 
not  a  competent  witness  to  prove 
thera.  Venning  v.  Hacker,  2  Hill 
(S.  C. ),  584.  So  the  memorandum 
books  of  a  peddler,  in  which  he  made 
his  original  entries  for  the  most 
part  in  pencil,  and  carried  about  in 
his  pocket,  are  not  admissible  in 
evidence  as  merchants'  books  of  ac- 
counts. Thayer  v.  Deen,  2  Hill  (S. 
C. ),  677.  And  where  a  shopkeeper 
himself  sold  and  delivered  goods  to 
a  party,  and  during  the  same  day  the 
entries  were  made  by  another  person, 
who  occasionally  acted  as  clerk  for 
him,  it  was  held  that  the  book  was 
no  evidence  of  the  debt,  and  that  the 
evidence  was  inadmissible.  Harris  v. 
Caldwell,  2  McMull.  (S.  C.)  133. 
The  books  of  a  tradesman  or  mechanic 
are  admissible  in  evidence  only  to 
prove  the  performance  and  delivery  of 
work  done  within  the  mechanic's 
shop.  Where  the  work  is  done  out- 
side of  his  shop,  or  on  the  premises 
of  the  party  charged,  such  as  build- 
ing or  repairing  a  house  or  any 
other  fixture,  there  can  be  no  neces- 
sity for  books,  for  the  work  is  ap- 
parent. St.  Phillip's  Church.  2  Mc- 
Mull. (S.  C.)  306.  Where  A.  ver- 
bally authorized  B.  to  let  C.  have 
goods  on  his  guaranty,  and  B. 
charged  the  goods  to  A.  for  C,  in  an 
action  brought  by  B.  against  A.  for 
the  value  of  the  goods.  B.  may  verify 
his  books  by  his  oath,  but  cannot  tes- 
tify to  anything  further  to  establish 


Sec.  128.]  Entries  in  Course  of  Business.  381 

Sec.  128.  Rule  in  different  States. 

As  has  been  seen,  the  rules  relating  to  the  admission  of  books 
of  account,  in  the  different  States,  are  not  uniform.  In  same  of 
them^  the  books  are  left  to  the  jury,  even  though  falsified  or  al- 
tered, to  judge  of  the  degree  of  credence  to  be  given  to  them,  while 
in  others,  indeed  in  most  of  the  otliers,  before  the  books  can  be  ad- 
mitted, they  are  to  be  submitted  to  the  inspection  of  the  court,  and 
if  they  do  not  appear  to  be  a  register  of  the  daily  business  of  the 
party,  and  to  have  been  honestly  and  fairly  kept,  they  are  ex- 
cluded, and  such  also  is  the  rule  when  they  are  manifestly  altered 
or  evaded,  unless  such  alterations  are  explained.^  If  upon  inspec- 
tion by  the  court  they  appear  to  be  fair  and  honest,  and  free  from 
fraudulent  practices  and  -proper  to  be  laid  before  the  jury,  the 
party  is  then  required  to  make  oath  that  they  are  the  books  in 
which  the  accounts  of  his  ordinary  transactions  are  usually  kept,^ 
and  that  the  goods  therein  charged  were  actually  delivered,  or  the 
money  actually  paid,  or  the  services  actually  rendered,  and  that 
the  entries  were  made  at  or  about  the  time  of  the  transaction,  and 
'are  the  original  entries  thereof,  and  that  the  sums  therein  charged 
have  not  been  paid,  except  as  indicated  by  the  credits  in  the  book.* 

A.'s  liability.  Brown  v.  Kinloch,  2  (Penn.)  106;  Cogswell  v.  Dalliner, 
Spears  (S.  C),  284.  If  a  merchant's  2  Mass.  217;  Faxon  v.  Hollis,  ante  ; 
book  of  original  entries  shows  that  Cole  v.  Anderson.  8  N.  .T.  L.  68; 
the  goods  charged  to  defendant  were  Jones  v.  DeKay,  2  id.  695;  Thomas 
delivered  to  a  third  person,  the  en-  v.  Dj-ott,  1  N.  &  McCord  (S.  C),  186. 
tries,  supported  by  the  plaintiff's  Time  books  kept  with  the  men  en- 
oath,  are  not,  of  themselves,  enough  gaged  in  work  upon  a  railroad  are 
to  charge  the  defendant.  The  order,  not  admissible  as  evidence  to  show 
direction,  or  request  of  the  4efendant  the  cost  or  amount  of  such  work 
must  be  proved  by  other  evidence.  until  it  is  shown  t^iat  they  were  prop- 
Kinlock  v.  Brown,  1  Rich.  (S.  C.)  erly  and  correctly  kept.  For  v.  St. 
223.  So,  where,  to  prove  goods  sold  Louis.  &c.,  R.  R.  Co.,  54  Iowa,  723. 
and  delivered,  the  plaintiff,  a  mer-  «  Fry  v.  Barker,  2  Pick.  (Mass.)  65. 
chant,  produced  his  books,  and  testi-  *  Ives  v.  Niles,  5  Watts  (Penn.), 
iied  "that  his  clerk  reported  lo  him  324;  Cogswell  v.  Dalliner,  ante.  In 
the  terms  agreed  vipon  by  him  and  Curren  v.  Craicford,  4  S.  &  R. 
the  defendant  respecting  the  sale  of  (Penn.)  9,  it  was  held  to  be  essen- 
the  goods,  and  upon  that  report  the  tion  to  this  kind  of  evidence  that  the 
witness  made  the  entry ;  that  he  dc-  charges  should  be  in  such  a  state 
livered  the  goods  to  a  drayman,  who  that  they  may  be  presumed  to  be 
told  witness  that  defendant  sent  for  the  minutes  of  the  daily  business  of 
them,"  it  was  held  that  the  evidence  the  plaintiff.  Where  this  appear- 
was  insufficient  to  s^upport  the  action.  ance  is  wanting,  the  evidence  is  re- 
Clough  v.  Little.  3  Rich.   (S.  C. )   353.  jected   as  incompetent;   and  where,  it 

'  Delaware,   Gossenich    v.    Zibley,   5  exists,  and  the  book  is   admitted,  the 

Harr.    (Del.)     124;   Sargeant   v.    Pet-  evidence   remains   liable   to  all   objec- 

tibone.   1  Aik.    (Vt. )    355.,  tions     suggested    by    unfair    appear- 

=  Churchman    v.    Smith,    6    Whart.  ances    of    the    particular    account    in 


382  Evidence.  [Chap.  !:> 

If  the  party  is  dead,  his  books  may  be  admitted  if  they  are  shown 
bv  the  siippletary  oath  of  his  executor  or  administrator  to  have 
come  into  his  possession  as  the  genuine  books  of  account  of  the 
deceased,  and  he  also  swears  that,  to  the  best  of  his  knowledge  and 
belief,  the  entries  therein  are  original  and  contemiX)raneous  and 
unpaid.^  It  must  also  appear  that  the  book  is  the  registry  of 
business  actually  done,  and  not  of  orders,  executory  contracts  and 
things  to  be  done  subsequent  to  the  entry  f  and  the  entiy  must 
have  been  made  for  the  purpose  of  charging  the  debtors  with  the 
debt,  and  not  as  a  mere  memorandum  for  some  other  purpose. 
Thus,  a  memorandum  in  a  check  book,  upon  the  "  stub  "  thereof, 
has  been  rejected,  when  cut  from  tlie  book,  and  offered  as  evidence 
of  the  date,  amount  and  tenor  of  the  check.' 

The  scale  books  of  a  deceased  surveyor  are  admissible  to  show 
the  amount  of  bark  taken  from  a  certain  tract  although  they  do 
not  show  from  what  tract  the  bark  noted  was  taken,  where  it  is 
shown  otherwise  that  the  defendant  owned  no  other  tract  in  the 
vicinity  from  which  bark  was  taken  at  the  time  of  the  record.^* 

In  most  of  the  States,  as  has  been  before  stated,  even  though  the 
case  is  prima  facie  a  proper  one  for  proof  by  entries,  if  it  appears 
either  on  the  face  of  the  charge  or  in  any  other  way  that  there  is, 
in  fact,  living  or  attainable  proof  of  the  item,  independent  of  the 
entries,  the  latter  are  then  inadmissible;  for  it  being  apparent 
that  the  ordinary  common-law  proof  exists,  which  is  superior  in 
degi-ee,  that  must  be  produced.  It  can  only  be  dispensed  with,  and 
the  entries  received,  where  it  is  shown  to  be  in  truth  beyond  the 
reach  of  the  party.  The  common  case  in  New  York  is  where  the 
party  has  a  clerk,^  although  one  case  seems  to  hold  that  the  entire 

issue,    or    from    the    whole   book,    or  ^McLellan  v-   Crofton,  6  Me    307 ; 

minutes,    taken    together,    and    which  Pnnce  v^  Smith,   4  Mass    4od  ;   Bent- 

naturallv    affect    the     credibility    of  ley    v.    Hollenbeck,    Wright     (Ohio), 

the    evidence     and    must    appear   to  169. 

have  been  made  at  or  near  the  time  MVilson  v.  ,^^  ^^^on    «  ;n     j.  L    9 

of  the  transaction  to  be  proved;     and  Terrill  v.  Beecher   9  Con"^  344    "Brad- 

when  the  contrary  is  apparent,  or  is  ley  v   Goodyear    1  Day  (Conn.)     104 

sho^^•n  by  proof,  the  books  are  inad-  Fairchild     v.     Dennison,     4      Watts 

missible.       But    no    precise    time    is  (Penn.),  2o8. 

fixed  bv  law  when  the  entry   should  M\  atson  v.  Gadm    ^^  "ght   (Ohio), 

be   made.        Jones   v.   Long.   3   Watts  219;      Cooper    v.    Morrell,    4    \eates 

(Penn.).  326;     Henry  v.  Oves,  4  id.  (Penn),  341. 

46-      Fairchild  v.   Dennison,  id.   258;  -a  Hagerty      v.      Webber,      (Maine, 

Walter  v.  Bollman,  8  id.  .544;   Loner-  1905)  .-61  A    680 

gan  V    Whitehead.  10  id.  249;     Cook  n  osburgh  v.  Thayer,  12  John.   (^. 

V.   Ashmead,   2    Miles    (Penn.),    268;  Y.)   462. 

Thompson  v.  Bullock,  id.  269.  . 


Sec.  128.]  Entries  in  Couese  of  Business. 


383 


entries  may  be  received,  though  part  were  made  by  the  clerk,  and 
the  rest  by  the  party.^     Nothing  but  the  death  of  the  clerk  will 
let  in  the  book.^^     Thus,  in  a  Xorth  Carolina  case,  the  clerk  was 
absent  in  the  West  Indies,  and  in  another,"  the  clerk  was  in  South 
Carolina;  yet  such  absence  was  held   no  excuse  in  either  case. 
Some  cases,  however,  allow  the  excuse  that  the  clerk  is  perma- 
nently beyond  the  power  of  the  court. '^    Upon  the  same  principle, 
a  schoolmaster's  original  entries  are  not  proof;  for  he  has  usually 
many  witnesses  by  whom  to  prove  his  services,  and  he  must  avail 
himself  of  them.^^  The  analogy  of  these  cases  has  been  carried  by 
authority   into  a   variety  of  transactions;    and  the  courts  very 
judiciously  appear  determined  to  act  on  the  same  principle  in 
regard  to  all  matters  forming  the  subject  of  evidential  account 
books.     True,  in  one  case  a  lime  burner  and  vendor's  book  was 
received  to  prove  large  sales  of  lime  delivered  out  by  servants  and 
agents,  where  the  party  was  generally  present,  either  at  the  kiln, 
when  the  loads  were  placed  in  wagons,  or  else  saw  the  delivery ; 
and  this,  though  he  was  absent  on  a  very  few  occasions  ;^^  and  in 
another  case,  entries  made  by  the  party  froni  a  memorandum  of  a 
servant  were  received.^'     If  the  goods  were  delivered  to  a  third 
person  on  account  of  the  vendee,  the  books  are  not  evidence  f  not 
even  though  they  were  the  vendee's  servants.'^     So,  though  the 
books  of  a  printer  are  receivable,  they  are  no  farther  so  than  to 

v^^i^f '^'f''-   ^''''^'   ^^^'^"^;    (^-  (P^n")    80,  and   Kessler  v.  M'Cona- 

\.)    483.     But   quere  as   to   such   en-  chy,     1     Rawle     (Penn.),     441      both 

tries   as   appear   to    be    made    by   the  manifest  a   strong   tendency  to'  areat 

clerk;   for   other    cases   have,    with   a  strictness,  and  a  conformitV  with  the 

laudable   jealousy   of    such   self-fabri-  other  cases   in   the  State  of  PennsX 

cated  ^evidence,  adhered  closely  to  the  vania  and  elsewhere.  But  see  Kau4- 

rule  that  where  the  entry  is  made  by  ley   v.    Brewer,    16    S.   &    R.    (Penn  ) 

the    clerk,    nothing    shal     excuse    his  133.     In  a  former  case  in  that  State 

absence    except    his    death.        Kenedy  charges   for  work   done   by   a  servant 

};•,  Fairman,        Hayw.    (N.    C.)    458;  were"    disallowed     as     evfdence      Jhe 

jynteheld  v.  Walk,  2  Hayw.    (N.  C.)  court     saying      such      evMei^^e'    wa. 

10  TT        1  -n  .  ,     X.  allowed    from    necessity,    ahd    where 

-Kenedy     v.     Fairman,     1     Hayw.  the  work   has   been   donUy  a    tS 

ll^\^\'■4.T\^         XT.  „  person,   the   necessity   does   not   exist 

"Sen-ittv    P„^^   b""^  ^  He  can  prove  it.     ''Cessante  ra^^Z 

bteriitt  y.  Bull,  1  Binn.    (Penn.)  cessat  ipsa  lex."    .    Wright  y.   Sharp 

f,'^  ,  1   Browne   (Penn.).  344      Sn    chartr^^ 

-Pelzer  y.  Cranston,  2  M'Cord    (S.  for  work  done  by'senants,  'for  t?ey 

iin  r.        ^     .  ^^^    competent    witnesses.     Wrio-ht  v 

"Curren   v.    Crawford,    4    S.    &    R.  Sharp,   1   Biwne    (Penn.),  344 
(Penn.)   3.  "Kerr  v.  Love,  I  Wash     (XJ    S    C 

'"Ingraham  v.   Bockius,   9  S.  &  R..  C.)    172.  ^  * 

(Penn.)     285        Yet    the    subsequent  ^' Eastman  v.  Moulton,  3  N.  H    156 

eases  of  Smith  v.   Lane,   12   S.  &  R,  '       >•  ^i-  luo. 


384  Evidence,  [Chap.  13 

prove  the  retainer  to  do  the  work ;  for  the  fees  may  be  produced 
to  show  the  quantum,  and  the  price  may  be  proved  by  others  ;^^ 
nor  are  a  tailor's  books  receivable  to  prove  goods  delivered  to  the 
defendant's  ward  by  the  order  of  the  defendant.  Here  they  are 
mere  proof  of  the  delivery.  Books  are,  in  general,  not  allowed  to 
prove  a  direction  or  instruction  to  deliver  to  a  person  other  than 
the  defendant. ^^  The  charge  on  its  face  purporting  to  be  of  goods 
delivered  to  another  on  the  defendant's  order,  it  was  rejected  as 
incompetent.^''  And  where  goods  were  delivered  on  written  orders, 
an  account  was  excluded  as  evidence,  for  that  reason  among  others. 
The  orders  should  be  produced,  or  otherwise  proved  on  accounting 
for  their  absence.^^  Where  the  goods  are  delivered  out  by  another 
■or  by  others,  the  account  kept  by  them,  or  by  one  on  their  informa- 
tion, cannot  be  received ;  for  the  party  has  other  proof  by  those  w^ho 
delivered  the  goods,  and  they  must  be  produced,  or  their  absence 
accounted  for.^"  Where  the  charge  was  for  medicine  and  attend- 
ance on  an  aged  menial  servant  of  the  defendant,  the  plaintiff's 
book  was  received  as  usual ;  but  it  w'as  held  that  the  defendant's 
agreement  to  pay  must  be  proved  by  evidence  aliunde}^  Yet 
charges  for  goods  sold  and  delivered  to,  and  services  performed  for 
one  on  account  of  another,  have  been  sustained  by  the  claimant's 
original  entries  in  Connecticut,  without  showing  the  death  or  ab- 
sence of  the  witnesses.  But  the  question  was  not  presented  in  the 
above  points  of  views;  and  some  reliance  seems  to  have  been 
placed  on  the  statute  of  tliat  State  as  controlling  the  case.^*  To 
be  admissible  at  all,  the  entries  should  be  made  at  or  near  the  time 
of  the  transaction.  The  law  fixes  no  precise  instant.  They  are 
not  to  be  registers  of  a  past  transaction,  but  memoranda  of  trans- 
actions as  they  occur,^^  and  where  some  w^ere  made  at  the  time  and 
otliers  some  months  after,  without  distinguishing  which,  or  assign- 
ing a  good  reason,  the  whole  were  rejected  as  incompetent.^^  In 
an  action  for  labor  and  materials  furnished  under  contract,  entries 
in  the  plaintiff's  journal  and  ledger  made  after  the  work  was  done, 

"  Richards    v.     Howard,     2     N.     &  "  Coffin  v.  Cross,  3  Dane's  Abr.  322. 

M'Cord   (S.  C),  474.  "Bryan  v.   Jackson,  4   Conn.   288. 

^^  Deas  V.'  Darby,  1  N.  &  M'Cord  ( S.  =""  CuVren   v.    Crawford,    4    S.    &    R. 

£\     436_                "  (Penn. )    5;      Ewing  v.    Sparks,   7   N. 

-'"Tenbroke  v.  Johnson,  1   N.  J.  L.  J.  L.  59;  Eastman  v.  Moulton,  3  N. 

■288-  Townley  v.  Wooley,  1  id.  377.  H.  156;  Cogswell  v.  Dalliner,  2  Mass. 

=^  Smith     V.     Lane,     12     S.     &     R.  217. 

;(Penn.)    80.  ^^  Vann      v.       Feariss,      1      Yeates 

'=  Smith  V.  Lane,  ante.  (Penn.),  321. 


Sees.  129,  130.]     Enteies  in  Course  of  Business.  .  385 

end  not  from  his  memorandum  hook,  which  had  been  introduced 
bj  the  defendant,  were  held  to  be  inadmissible  in  rebuttal  of  the 
latter.2^ 

Sec.  129.  Effect  of  Alterations,  Etc.;  of  what  Things  they  may 
be  used  as  Evidence. 

If  the  day  book,  journal,  etc.,  contains  marks,  showing  that  the 
items  have  been  posted  into  the  ledger,  the  latter  must  also  be  pro- 
duced.^^  Entries  made  in  the  manner  stated  are  not,  in  all  cases, 
received  as  satisfactory  evidence  of  the  matters  stated,  but  only  as 
proof  of  things  which  are  not  susceptible  of  better  proof.^^  They 
are,  however,  satisfactory  evidence  of  goods  sold  and  delivered 
from  a  shop  or  store,  or  of  services  personally  performed,^*'  and, 
in  some  of  the  States,  of  the  payment  of  small  sums  of  money  f^ 
but  a  book  containing  only  charges  for  money  is  not  admissible  as 
a  book  of  accounts,  even  where  the  statute  expressly  makes  the 
party's  book  of  accounts  admissible.^^ 

Sec.  130.  Of  what  Things  they  are  not  Evidence. 

A  party's  books  are  never  admissible  to  establish  items  which 
■do  not'  form  the  proper  subject  of  book  charges,  which,  in  most 
of  the  States,  embrace  such  items  as  are  recoverable  in  general 
assumpsit,  although  in  some  of  the  States  the  rule  has  a  much  nar- 
Tower  application.  Thus  among  matters  which  do  not  form  the 
proper  subject  of  book  charges  are  embraced  charges  for  advertis- 
ing in  a  newspaper,^  for  money  paid  and  not  applied  as  directed,^ 
of  goods  delivered  to  a  third  person,^  for  commissions  upon  the 
sale  of  a  vessel,*  for  labor  of  servants,^  for  dockages  of  a  vessel,® 

"Bentley  v.  Ward,  116  Mass.  333.  'Richards  v.  Howard,  2  N.  &  Mc- 

"Prince  v.  Sweet,  2  Mass.   569.  Cord   (S.  C),  474. 

="  Watts?  V.  Howard,  7  Met.  (Mass.)  'Bradley     v.      Goodyear,      1     Day 

478.  (Conn.).  104. 

^Easbv  V.  Allen,  1  Cooke   (Tenn.),  '  Tenbrook  v.  Johnson,    1   N.   J.   L. 

?88;   Case  v.  Patten.  8  John.   (N.  Y.)  288;   Townly  v.   Woolsey,    1   id.   377; 

211;   Charleton    v.   Lowry,    1    Martin  Kerr  v.  Love,  1  Wash.   (Va.)   172. 

(N.   C),  26;   Spencer  v.   Saunders,   1  *  Winsor      v.      Dilloway,      4      Met. 

Bay      (S.     C),     119;      Vosburgh     v.  (Mass.)   221. 

Thayer,  12  John.    (N.  Y.)    461;  Wil-  *  Wright     v.      Shoop,      1      Browne 

mer  v.  Israel,  1  Browne   (Penn.),  257.  (Penn.),  344. 

^^  Prince  v.   Smith,  ante;   Burns   v.  ^  Wihner      v.      Israel,       1     Browne 

Fay,    14    Pick.    (Mass.)    8;     Dunn  v.  (Penn.),  257.     Because  they  can  tes- 

Whitney,  10  Me.  9.  tify   to   the   services. 

*=>  Parries   v.   Bellaeus,   52   Vt.   351. 
25 


386  Evidence.  [Chap.  13 

for  money  paid  under  a  special  agreement,^  or  a  delivery  of  goods 
under  such  agreement,^  an  article  omitted  by  mistake  in  a  prior 
settlement,^  the  use  and  occujiation  of  real  estate,  and  the  like.^** 
So,  such  books  are  generally  inadmissible  to  prove  the  loan  of 
large  sums  of  money,  because  transactionsi  of  this  character  are 
usually  evidenced  by  promissory  notes,  checks  and  bills  of  ex- 
charge.  But  such  items  may  be  proved  by  the  books  of  a  banker 
or  broker,  when  such  is  in  pursuance  of  his  ordinary  business 
method."  Thus,  a  certain  debit  book  containing  an  account  of 
dealings  in  promissory  notes  written  partly  by  the  party  himself 
and  partly  by  his  bookkeeper  is  admissible  in  evidence  in  his  favor 
when  verified  by  the  oath  of  the  party  himself  and  his  bookkeeper, 
as  it  is  an  account  book  of  original  entries,  fair  on  its  face  and 
shown  to  be  kept  in  the  usual  course  of  business.^^  In  Massachu- 
setts and  Maine  a  money  charge  of  over  40  shillings  ($6.67) 
may  not  be  proved  by  a  book  account.^^  An  entry  "  Paid  A 
$25.00,  which  settles  to  date  as  per  agreement,"  is  not  a  proper 
subject  of  book  entry. ^*  But  after  the  order  to  deliver  goods  to  a 
third  person  is  proved  by  competent  evidence  aliunde,  the  de- 
livery itself  may  be  proved  by  the  books  and  suppletory  oath  of 
the  plaintiff,  in  any  case  where  such  delivery  to  the  defendant  in 
person  might  be  so  proved.^^  But  the  books  of  original  entry  of  a 
consignor  are  inadmissible  to  show  delivery  of  goods  sent  under 
a  contract,  although  they  would  have  been  prima  facie  evidence 
of  sale  and  delivery  ini  the  absence  of  a  special  contract.^®  The 
charges,  moreover,  must  be  specific  and  particular.  A  general 
charge  for  professional  services,  or  for  work  and  labor  by  a  me- 
chanic, without  any  specification  but  that  of  time,  cannot  be  sup- 
ported by  this  kind  of  evidence.^"^    And  regularly  the  prices  ought 

^Pritchard  v.  McOwen,  1  N.  &  McC.  142  Mo.  560,  44  S.  W.  754,  64  Am.  St. 

(S    C),  131,  n.;    Dunn  v.  Whitney,  Rep.  567. 

in"Mp    9-   Green  v.   Pratt,    11   Conn.  ^«  Waldron  v.  Priest,  96  Mame,  36, 

2Qg             '  51   A.    235;   Davis   v.   Sanford,   9   Al- 

'Nickle    V.    Baldwin,    4    W.    &    S.  len,  216. 

(Penn  )   290.  "  Waldron  v.  Priest,  96  Maine,  36, 

»Punderson  v.  Shaw,  Kirby,  150.  51  A   235. 

-Beech  V.  Mills,  5  Conn.  493;  New-  ^  ^.^^^^^^^  v-  ^^1^"'''^.'  '^  ^w     J'"' 

ton   V    Higgins,   2   Vt.    366;   Dunn   v.  ''Hall     v.     Chambersbing     Woolen 

Whitney    10  Me.  9.  Co.,   187   Penn    St.   18,  40  A.  986,  67 

"Harmon    v.    Decker,    41    Or.    587,  Am.  St.  Rep.  563. 

68  Pac    11,  nil,  93  Am.  St.  Rep.  748.  "Lynch  v.  Petrie,  1  Is    &  McC.   ( b . 

'^Borgess  Investment  Co.  v.  Vette,  C),    130;      Hughes    v     Hampton,    ■> 

Const.  Rep.    (S.  C.)   4/6. 


Sec.  131.]  Entries  ix  Course  of  Business. 


387 


to  be  specified ;  in  which  case  the  entry  is  prima  facie  evidence  of 
the  value. ^^  But  whatever  be  the  nature  of  the  subject,  the  trans- 
action, to  be  susceptible  of  this  kind  of  proof,  must  have  been 
directly  between  the  original  debtor  and  the  creditor,  the  book  not 
being  admissible  to  establish  a  collateral  fact.^^ 

Although  books,  such  as  have  been  described,  are  admitted  to 
be  given  in  evidence,  with  the  suppletory  oath  of  the  party,  yet 
his  testimony  is  still  to  be  weighed  by  the  jury,  like  that  of  any 
other  witness  in  the  cause ;  and  his  reputation  for  truth  is  equally 
open  to  be  questioned.'"  In  some  States,  the  books  thus  admitted 
are  only  those  of  shopkeepers,  mechanics  and  tradesmen ;  those 
of  other  persons,  such  as  planters,  scriveners,  schoolmasters,  etc., 
being  rejected. ^^ 

Sec.  131.  What  are  proper  Subjects  of  Book  Charge. 

Among  matters  which  do  form  the  proper  subject  of  book 
charge,  are  items  for  personal  property  sold  and  delivered/-  and 
this  is  the  rule  irrespective  of  the  value  of  the  property,  or 
whether  the  charge  embraces  several,  or  only  a  single  item.^ 

In  order  to  be  the  proper  subject  of  book  charge,  it  is  not  in 
all  cases  necessary  that  the  goods  should  be  delivered  to  the  per- 
son to  whom  they  are  charged  or  upon  his  express  order.  It  is 
sufficient  if  they  are  furnished  to  a  person  under  such  circumr 
stances  that  the  law  will  imply  a  promise,  on  the  part  of  the  per- 
son to  whom^  they  are  charged,  to  pay  for  them.  Thus,  as  a  hus- 
band is  bound  to  furnish  support  for  his  wife  and  provide  her 
with  necessaries,  and  a  father  to  supply  his  minor  children  with 
necessaries,  or  a  guardian  to  provide  his  ward  with,  necessaries  out 
of  the  ward's  estate,  it  follows  that  a  person  supplying  such 
articles  may  properly  charge  them  in  acount  to  the  person  who  is 

■^^Hagaman  v.  Case,  4  X.  J.  L.  370;  "  Geter  v.   Martin,  2   Bay    (S.   C), 

Ducoign      V.      Schreppel,      1      Yeates  173;   Pelzer  v.   Cranston,  2  McC.    (S. 

(Penn.),  347.  C. ),   328;      Boyd   v.   Ladson,   4   McC. 

^^Miffl'in    v!    Bingham.    1    Ball.    (U.  (S.  C.),76. 

S.)    276;  Kerr  v.  Love,  1   Wash.    (U.  '  Shillaher    v.    Bingham,    3    Davies' 

S.)   172;  Deas  v.  Darby,  1  N.  &  McC.  Abr.  321. 

(S.   C),   436;      Poultney  v.   Ross,    1  ^  In  Leach  v.   Sheppard,  5  Vt.  363, 

Dall.    (U.  S. )    238.  the  only  charge  was  2,088  pounds  of 

'"Kitchen  v.  Tyson,   2  Murph.    (N.  meal.       In     Shillaher     v.      Bingham, 

C.)    314;   Elder  v.   Warfield,   7   H.  &  ante,  the  charges  were  for  78  bushels 

J.   (Md.)  391.  of  salt  and  132  gallons  of  rum. 


388  Evidence.  [Chap.  13 

legally  bound  to  supply  them,  and  being  proper  items  of  book 
charge,  the -book  is  evidence  for  the  party  supplying  them.^ 

But  it  must  be  remembered  that  in  order  to  warrant  a  charge 
upon  book  for  property  sold,  it  must  in.  all  cases,  have  been  deliv- 
ered/ and  the  circumstance  that  the  goods  were  ordered  abso- 
lutely, but  not  delivered,  will  not  let  in  the  book  containing  a 
charge  therefor  as  evidence,  because,  until  an  actual  delivery  is' 
made,  the  contract  is  executory.^ 

So,  too,  in  order  to  be  a  proper  subject  of  book  charge,  thei 
right  to  charge  for  property  delivered  must  exist  at  the  very 
moment  of  delivery,  and  cannot  arise  afterwards  from  some 
special  contract  or  circumstance.  Thus,  money  advanced  to  a 
person  under  a  special  contract  to  deliver  goods  therefor  at  a 
future  day,^  or  property  delivered  to  A.  to  be  by  him  delivered  to 
B,,  but  which  he  ap2>ropriates  himself,^  cannot  be  made  the  sub- 
ject of  book  charge.  But  in  all  the  cases  in  which  these  questions 
arose,  it  will  be  observed  that  they  arose  in  actions  of  "  book  ac- 
count "  in  which,  by  statute,  the  parties  were  permitted  to  testify, 
and  the  princij)al  objection  urged  against  the  admission  of  the 
class  of  charges  last  referred  to  was,  that,  to  permit  such  charges 
to  be  made  and  sustained  by  the  party's  book  and  oath,  would  be 
permitting  the  party  to  testify  as  to  special  contracts,  whereas  the 
statute  only  contemplated  his  being  permitted  to  testify  to  the 
quantity,  quality  and  delivery  of  the  articles  in  question  f  and 
this  seems  to -have  been  the  ground  upon  which  the  decisions  above 
cited  were  predicated.  ^Yhether  the  circumstance  that,  in  most  of 
the  States,  the  parties  to  all  classes  of  actions  are  now,  by  statute, 
permitted  to  testify  in  their  own  behalf,  would  change  the  rule 
relative  to  book  charges,  is  a  question  which  does  not  seem  to  have 
been  decided. 

Money  loaned  may  properly  be  charged  upon  books,  although 
memorandum  notes  are  given  for  the  amount,  unless  it  is  shown 

« Mills  V.  St.  John,  2  Root  (Conn.),  « Peck  v.  Jones,   1   Kirby    (Conn.), 

188;   Swift's  Ev.   84.  289. 

*  Howell  V.  Bardin,  3  Dev.    (X.  C.)  '  Slason  v.  Davies,  1  Aik.  (Vt.)  7.3; 

449;  Eead   v.    Barlow,    1   Aik.    (Vt.)  Bradly  v.  Goodyear,  1  Day    (Conn.), 

145;    1   Vt.  97.  104. 

"^  Rhoades      v.      Gaul,      4      Rawle  *  Phenix      v.      PrinHle,      1      Kirby 

(Penn.),  404.  (Conn.),    209;  Terrill    v.    Beeeher,    9 

Conn.  349. 


Sec  131.]  Entries  in  Course  of  Business.  389 

that  the  notes  were  given-  and  accepted  in  extinguishment  of  the 
book  debt.® 

Services  performed  are  a  proper  subject  of  book  charge,  in 
whatever  capacity  they  may  have  been  rendered.^"  Thus  services 
rendered  by  an  attorney,"  a  justice  of  the  peace,^  or  indeed  by  any 
person  in  whatever  capacity,  where  there  is  either  an  express  or 
an  implied,  promise  to  pay  therefor.^^  And  this  is  also  the  rule 
as  to  services  rendered  by  horses,  cattle,  etc.'^ 

But  as,  in  the  case  of  goods  sold,  it  must  appear  that  they  were 
actually  delivered  before  they  can  properly  be  charged  on  book, 
so  in  the  case  of  services  it  must  he  shown  that  they  have  heen, 
actually  performed}^ 

"Where  an  agreement  by  certain  parties  to  loan  certain  sums  of 
money  to  aid  in  the  building  of  a  hotel,  provided  that  W.  and 
others  should  be  the  attorneys  in  fact  of  the  subscribers,  empow- 
ered to  contract  with  a  suitable  person  to  execute  the  purpose  of 
the  agreement,  and  collect  and  disburse  the  amounts  subscribed, 
and  they  entered  into  a  contract  with  S.  to  build  such  hotel,  and 
"W.,  who  was  a  banker,  was  made  their  treasurer,  it  was  held  that 
the  entries  in  the  books  of  W.  were  not  admissible  to  charge  S'. 
with  the  receipt  of  the  subscriptions,  in  an  action  against  him  by 
a  subscriber  to  recover  the  amount  of  an  alleged  payment.  An 
entry  in  a  book  of  accounts,  w^hich  is  the  principal  fact  upon 
which  the  right  to  recover  is  based,  is  not  admissible  as  being  part 

•Clark   V.    Savage,    20    Conn.    258.  "  Hawell  v.  Barden,  3  Dev.   (N.  C.) 

And  it  seems  that  this   is  the  case,  449. 

although      the  ,   memorandum      was  "Waldron  v.  Priest,  96  Maine,  36, 

taken  as  evidence  of  the  loan.     Bout-  51   A.    235;      Charleton   v.   Lawry,    1 

well   V.   Tjier,    11   Vt.   487;   Smith   v.  Martin    (X.  C),  44;   Bell  v.  McLean, 

Brush,   11   Conn.   359;   Bill  v.  Porter,  3  Vt.  185. 

9   Conn.    31 ;      Arnold    v.    Greene,    8  "  Sargeant    v.     Pettibone,     1     Aik. 

John.    (N.  Y. )    79.     If  a  charge  upon  (Vt. )    355. 

book   was   not  originally   proper,   the  "  Minor  v.  Irving,  1  Kirby  (Conn.), 

parties    may    make    it    so    by    their  158 ;     Foy  v.  Slyfield,  3  Vt.  246 ;  Ba- 

conduct,  assent  or  agreement.     Spear  mers   v.   Dunn,   2   Root    (Conn.),   59. 

V.  Peck,   15  Vt.  566;   Daton  v.   Whit-  But    see    Harbison    v.    Hawkins,     81 

comb,   17   id.    641.     In   Darlington   v.  Penn.  St.  142,  where  it  was  held  that 

Taylor,   2   Grant's   Cas.    (Penn.)    195,  a  charge  by  a  notary  public  for  ser- 

the    court    held    that     a   shop    book,  vices   in   taking   depositions    and    the 

even     though     the     entries     are     not  acknowledgment   of  a   deed,  were  not 

original,   and   some   of  the   items   not  proper  subjects  of  book  charge, 

the   subject   of   book   charge,   is    com-  "  Easly  v.  Eaken,  1  Cooke   (Tenn.), 

petent  evidence  if  it  has  been  shown  38;   Boardman   v.    Keeler,   2    Vt.    65; 

to   the   debtor   without    objection    on  Phenix  v.  Prindle,   1  Kirby    (Conn.), 

his  part.  207. 

^■^  Hawell  V.  Barden,  ante. 


390  Evidence.  [Chap.  13 

pf  the  res  gestae.  In  such  case,  certificates  to  subscribers  issued 
by  the  attorneTs  in  fact,  acknowledging  the  pavment  of  subscrip- 
tions to  the  loan,  would  not  be  competent  to  conclude  S.  therein. 
Nor  would  a  receipt  executed  bv  S.  to  W.  for  a  sum  less  than  the 
whole  amount  subscribed,  which  did  not  specify  the  names  of  the 
parties  from  whom  W.  had  received  the  money,  be  admissible  to 
establish  the  fact  that  S.  had  received  the  amount  pledged  by  any 
one  subscriber.  ^^ 

There  are  many  matters  which  may  become  the  proper  subject 
of  book  charge  by  the  agreement  of  parties,  or  by  their  usual  course 
of  dealings,  which  otherwise  would  not  be;  therefore  when  an 
item  in  an  account  is  objected  to  as  not  being  properly  chargeable 
upon  book,  the  party  may  show,  if  he  can,  that  it  was  agreed  be- 
tween the  parties  that  it  should  be  so  charged,  or  that  charges  are 
warranted  by  the  usual  course  of  dealing  between  the  parties. 
Thus,  where  there  is  a  special  contract  in  writing  between  the 
parties,  it  cannot,  nor  any  of  its  incidents,  properly  be  made  the 
subject  of  book  charge,  as  interest  accruing  upon  a  note,  contract, 
bond,  etc. ;  but  if  the  parties  so  agree,  or  if  such  charges,  relating 
to  the  same  contracts  between  the  same  parties,  have  formerly^ 
been  made  upon-  the  party's  booh,  and  settled  by  the  other  party 
unthout  objection,  such  charges  afterwards  made,  as  between  the 
parties,  and  growing  out  of  the  same  contracts,  would  doubtlessi 
be  regarded  as  proper,  and  the  same  may  be  said  as  to  rent  for  the 
use  of  lands,  etc.,"  because  in  such  a  case  the  parties  have  estab- 
lished a  species  of  usage  as  between  themselves  which  is  operative 
until  destroyed  by  the  objection  of  the  other  party. 

Nothing  which  grows  out  of  a  collateral  agreement  can  be  made 
the  subject  of  book  charges.  Thus,  where  goods  are  furnished 
to  A.  under  an  agreement  by  B.  to  pay  for  them  if  A.  does  not, 
the  goods  cannot  be  charged  to  B.  in  account,  but  the  remedy  of 
the  party  is  upon  the  special  agTeement.^^  Nor  can  any  mere 
claim  for  damages  arising  out  of  a  special  contract  or  from  ne- 
glect, default,  or  miscarriage  of  another,  be  made  the  subject  of  a 

"Sypher  v.  Savery,  39  Iowa,  258.  "In   Skinner  v.   Conant,   2  Vt.   75, 

"Case  v.- Berry,  3  Vt.   332;   Beach  this   rule   was   adopted  under   a    sim- 

V.    Mills,    5    Conn.    493 ;      Swing    v.  ilar  collateral   agreement  relating  to 

Sparks,  7  N.  J.  L.  59 :  Spear  v.  Peck,  services. 

15   Vt.    566;      Darlington    v.   Taylor, 

ante. 


Sec.  132.]  Entries  in  Course  of  Business.  391 

book  charge/^  nor  can  goods  left  with  a  person  to  be  sold  on  com- 
mission,^'' nor  damages  arising  from  a  tort.^^ 

Sec.  132.  Proof  of  and  Manner  of  Making  Entries.     Transcrip- 
tions. 

It  is  no  objection  to  a  book  that  the  entries  are  made  by  the 
party  from  data  furnished  him  by  his  workmen,  if  he  knows 
the  facts  therein  stated.  Where  memoranda  as  to  inspections  are 
made  by  subordinates  and  delivered  to  a  bookkeeper  who  tran- 
scribes them  on  a  ledger  the  ledger  is  not  admissible  in  evidence 
of  the  original  memoranda  unless  their  absence  is  accounted  for. 
If,  however,  they  have  been  lost  and  the  fact  is  satisfactorily 
shown  then  the  fact  of  the  inspection  may  be  proven  by  calling 
the  inspectors  who  made  the  memoranda  in  conjunction  with  the 
clerk  who  made  the  ledger  in  the  usual  course  of  business  and  the 
ledger  would  then  become  competent  evidence  to  go  to  the  jury.^ 
Where  payments  are  noted  on  slips  and  transcribed  at  the  end 
of  each  week  to  corporation  books,  the  books  are  admissible  only 
when  supported  by  the  oath  of  the  clerks  who  kept  the  slips  and 
transcribed  them.^  An  account  book  of  a  hotel  kept  by  a  clerk 
who  had  no  personal  knowledge  of  certain  of  the  items  and  whose 
only  knowledge  was  derived  from  slips  sent  to  his  office  from  cer- 
tain departments  by  a  bell  boy  is  not  sufficient  evidence,  as  the 
original  slips  were  not  produced.^  Books  of  an  insurance  com- 
pany, supported  by  the  testimony  of  the  bookkeeper,  are  not  ad- 
missible to  prove  items  copied  from  applications  for  insurance  as 
to  which  the  bookkeeper  had  no  personal  knowledge,  the  applica- 
tions themselves  being  the  best  evidence.*  A.  register  of  patients 
at  a  private  hospital  is  not  admissible  to  prove  the  disease  under 
which  a  certain  patient  was  suffering  when  kept  by  a  superintenr 
(lent  from  doctors'  reports  as  to  the  truth  of  which  the  superin- 
tendent, who  testified  to   ;he  register,  knew  nothing.^     It  is  held 

"Frv  V.   Slvfield,   3  Vt.   75;      Far-  ings,  L.  &   B.  Ass'n,  204  111.   616,  68 

rnnd  v.  Gage/3  Vt.  326.  N.  E.  R.  650. 

'"Brisch  v.  Hoff,  1  Yeates    (Penn.),  'Gould  v.   Hartley.   187   Mass.   561, 

198;  Kerr   v.   Love,    1   Wash.    (U.   S.  73  N.  E.  656. 

C.  C.)    172.  *  Union     Cent.     Life     Ins.     Co.     v. 

"Swing  v.Sparks,  7  N.  J.  L.  59.  Prigge,  90  Minn.  370,  96  N.  W.  917. 

^  Manchester  Assurance  Co.  v.  Ore-  °  Price  v.  Standard  Life  &  Accident 

gon    R.    R.    &   Navigation    Co.    (Ore.,  Insurance   Co.,   90  Minn.   264,   95    N. 

1905),  79  Pac.  60.  W.  1118. 

'  Trainor  v.  German-American  Sav- 


392  Evidence.  [Chap.  13 

not  to  be  sufficient  identification  of  certain  daily  reports  of  cattle 
reloaded  at  a  certain  point  that  these  reports  were  sent  to  the  vet- 
terinarian  stationed  at  the  city  to  which  the  cattle  were  consigned 
and  that  he  took  them  from  the  envelopes,  they  purporting  to 
be  signed  by  the  ''live  stock  agent."  They  were  not  registers  or 
records  but  simply  notification  reports  made  to  the  inspector. 
They  were  not  documents  belonging  to  any  public  office  nor  was 
there  any  testimony  that  they  were  required  to  be  kept  and  they 
were  not  shown  to  be  sent  by  any  official.  The  fact  that  the  re- 
ports were  customarily  sent  as  to  certain  kind  of  cattle  is  in- 
sufficient.® 

In  i!^orth  Carolina  it  has  been  held  that  where  a  train  sheet  is 
kept  in  the  regular  course  of  business  by  a  train  dispatcher,  based 
entirely  upon  reports  from  various  stations  made  to  him  by  tele- 
graph operators  of  the  arrival  and  departure  of  trains,  the  train 
sheet  may  be  used  as  evidence  of  the  matters  contained  therein  on 
the  testimony  of  the  official  who  kept  it.  It  is  undoubtedly  the 
general  rule  that  if  the  entrant  and  the  person  making  the  report 
upon  which  the  entry  is  made  are  both  living  and  available  they 
should  be  produced  to  testify  to  the  truth  of  the  subject  matter  of 
the  entry ;  that  if  one  be  living  and  available,  and  the  other  dead 
or  unavailable, — that  is  insane  or  beyond  the  process  of  the  court 
— ^the  entry  may  be  introduced  upon  the  testimony  as  to  its  au- 
thenticity of  the  living,  available  person.  The  decision  goes  far- 
ther in  holding  the  record  admissible  as  a  general  principle  when 
the  entrant  is  living  and  the  person  upon  whose  report  the  entry 
is  made  is  not  produced  nor  his  absence  accounted  for.  The 
court  founded  its  decision  partly  upon  necessity,  partly  upon  the 
fact  that  the  entry  was  made  in  the  regular  course  of  business, 
that  no  motive  to  mislead  existed  and  partly  on  the  suggestion 
that  the  train  sheets  are  quasi-imhlic  documents.^     A  book  is  re- 

"Dorr   Cattle  Co.  v.  Chicago  &  G.  some  of  his  eharores;   yet  his  book  of 

W.    Ry.     (Iowa,    1905),    103    N.    W.  charges   for  the  lime  was   allowed  to 

1003.  go   to  the   jury.     In   another   case,   a 

'Fireman's    Ins.    Co.    v.    Seaboard  butcher's  servant,  carrying  out  meat. 

Air  Line  Rv.    (N.  C,  1905),  50  S.  E.  uniformly     marked      in      pencil      the 

452.     See,  also,  Donovan  v.  R.  R.,  158  quantity  delivered,  which   his  mastor 

Mass.   150.  copied    into   his   book   on   his    return. 

In  Cumin  v.   Crawford,  4  8.  &  R.  The   book   was   held   receivable.        In 

(Penn.)  3,  the  partv  saw  his  lime,  in  graham  v.  Boekius,  9  S.  &  R.   (Penn.) 

general,  either   loaded   at  the   kiln  or  285.     But   see   Smith   v..  Lane,    12    S, 

delivered    to  the  vendees,  hut   not   al-  &  R-    (Penn.)    SO.     So,  where   one   of 

wavs,  and  trusted  to  his  wasroners  for  two  butchers    (partners)    customarily 


Sec.  132.]  Entries  in  Course  of  Business.  39S 

ceivable  as  evidence,  though  the  work  be  charged  while  in  prog- 
ress, and  before  it  be  completed ;  as  where  a  tailor  made  his 
charges  on  the  work  being  cut  out  and  delivered  to  his  journey- 
men, who  worked  in  the  same  house  with  him.  Such  mode  of 
keeping  books  as  is  usual  and  known  to  all  tradesmen  cannot 
safely  be  declared  bad  by  the  court.  In  some  trades  the  work 
is  in  hand  for  several  days,  and  goes  through  more  than  one  hand  ; 
and  the  entry  may  be  made  during  the  period  of  its  manufacture,, 
or  at  a  stated  time  when  it  has  progressed  a  certain  length.  The 
court  would  not  say  a  shopkeeper  could  charge  goods  not  yet  meas- 
ured or  weighed  off,  nor  a  tradesman  work  not  yet  begun ;  but 
they  hesitated  to  say  that  a  blacksmith  who  has  prepared  and 
weighed  iron  work,  and  then  charges  before  he  put  it  on  the  wood,, 
which  might  take  him  a  week,  or  a  chairmaker  who  makes  and 
paints  the  chairs  and  charges  them  before  sent  to  be  gilt,  shall  not 
read  his  book.^ 

The  entry  must  be  in  the  book  of  the  party,  kept  by  him  for 
the  purpose  of  his  daily  accounts,  generally,  with  all  those  persons 
who  may  have  dealings  with  him,  and  must  be  made  in  conformity 
to  the  prevalent  manner  of  his  keeping  the  book,  and  in  a  regular 
course  with  the  other  charges.  If  they  stand  isolated  on  the  front 
leaf  of  the  book,  and  not  falling  into  a  regular  order  with  the 
other  charges,  they  will  be  rejected.^  So  if  on  a  separate  sheet,, 
especially  when  it  appears  that  the  party  in  fact  keeps  an  account 

marked  the  scores  of  meat  with  chalk  himself.       Drummond    v.    Hyams,    1 

on  a   cart,   and  the  other,  before  the  Harp.    (S.   C.)    268.     And  where   the 

cart  went  out  apain.  copied  the  scores  journeyman    made    the   entries,    some 

into  the  book,  it  was  held  receivable,  of  them  on  a  slate,  whence  they  were 

on  the  oath  of  both  partners.     Smith  copied  by  the  master — some  in  a  day 

V.    Sandford,    12    Pick.     (Mass.)     139.  or   two.    some   in   a   week,   some    per- 

It  is  no  objection  to  the  book,  though  haps  not  short  of  two  weeks,  without 
the  entries  be  first  made   on   a   slate    '  distinguishing   which    was    longer    or 

and  then  transcribed  by  the  party,  if  shorter,  the  book  was  held  altogether 

done    in    the    oidinary    course    of    his  inadmissible.     And    much    stress   wa» 

making  such  entries,  Faxon  v.  Hollis,  laid  on  there  being  better  evidence — 

13  Mass.   427;   Kessler  v.  M'Conachy,  the  journeyman  himself;   they  should 

1   Rawle    (Penn.),   441,   though   prop-  at    lea.st    have    been    both    made    and 

erly  they  should  be  transcribed  daily;  transcribed  at  or  about  the  time  the 

and    where     it    was     left     in     doubt,  work  was  done;   and  the  party  should 

whether    a    day    or    two    after,    they  distinguish  the  entries  so  made  from 

were    rejected;      Ogden    v.    Miller,    1  those  made  more  loosely," or  the  whole 

Browne    (Penn.),  147;   and  they  will,  must  be   rejected.     Kessler  v.  M'Con- 

of  course,  be  rejected  if  it  do  not  ap-  achy,   1   Rawle   (Penn.),  441. 

pear  that  the  party  made  the  entries  *  Kaughley   v.   Brewer,    16   S.   &   R. 

on  the  slate,  but  it  is  left  to  be  in-  (Penn.)    133. 

ferred    that    they    were    made    by    a  "Lynch  v.  Hugo,  1  Bay  (S.  C. ),  33. 
servant,    who    could    attest    to    them 


394  Evidence.  [Chap.  13 

book.^"  So  of  a  mutilated  piece  of  paper,  which  appears  to  have 
been  torn  out  of  a  book,  in  which  the  name  of  neither  party  ap- 
pears, which  contains  no  charges  against  the  defendant,  and  which 
is  unintelligible  wdthout  explanation  by  the  plaintiff.^^  Where 
six  charges,  amounting  to  six  hundred  an'd  fifty  dollars,  were  on 
one  of  the  last  leaves  of  the  book,  separated  from  all  the  entries 
by  intervening  blank  leaves,  and  dated  during  the  same  period 
with  thirteen  other  charges  made  in  the  body  of  the  book,  appar- 
ently regular,  the  six  charges  were  held  properly  to  be  no  part  of 
the  book,  and  inadmissible,  the  same  as  entries  on  a  separate  leaf.^^ 
Charges  on  several  disconnected  pieces  of  paper  were  rejected. ^^ 
After  the  defendant's  demand  accrued  against  the  plaintiff,  the 
latter  caused  a  series  of  charges  to  be  continuously  written  down 
in  his  regular  book  against  the  defendant,  ranging  through  sev- 
eral years,  without  a  single  intervening  charge.  The  book  was 
held  clearly  inadmissible  as  evidence  of  such  charges."  But  in 
Vermont,  an  entry  of  a  service  as  counselor  at  law  on  a  separate 
slip  of  paper,  filed  according  to  the  party's  usual  practice,  was 
received.  ^^ 

To  make,  the  book  admissible  for  any  purpose,  it  must  contain 
the  original  entries  of  the  party  made  by  himself,  and  must  be 
an  account  of  his  daily  transactions.^^  An  account  book  kept  by  a 
deceased  party,  the  entries  in  which  are  contemporaneous  with 
the  facts  recorded,  is  admissible  in  evidence. ^^  In  Indiana  a 
party  may  read  hU  day  books  to  the  jury  when  he  made  them  up 
from  day  to  day  from  temporary  memoranda  as  to  the  number  of 
feet  of  timber  delivered,  as  the  books  are  then  part  of  the  res 
gestae}^  And  one  reason  why  they  must  not  appear  to  be  made 
by  another  is,  because  he  is  then  prima  facie  a  witness,  and  must 
be  produced.^®  But  regard  is  h-ad  to  the  party's  degree  of  educa- 
tion, and  if  he  cannot  write  so  as  to  make  entries,  they  may  be 

"  Prince  v.  Smith.  4  Mass.  455.  Mass.  455 ;  Eastman  v.  Moulton,  3  K. 

"Hough      V.      Doyle,      4      Rawle  H.  1-56;   Swing  v.  Sparks,  ante;KaTT 

(Penn.),   291.              '  v.    Stivers,    34    Iowa,    123;      Marsh's 

'=  Wilson  V.  Wilson,  4  N.  J.  L.  94.  Case.  30  Wis.  531. 

"Thompson  v.  McKelvey,   13   S.  &  "Railway  Co.  v.  Murphy,  60  Ark. 

R     (Penn.)    126.  333,  30   S.   W.  419,  46  Am.   St.   Rep. 

»  Swing  V.  Sparks.  7  N.  J.  L.  59.  202. 

'=Bell  V.  M'Lean,  3  Vt.   185.  "Place  v.   Baugher,    159   Ind.   232, 

"Curren    v.    Crawford,    4    S.    &   R.  64  N.  E.  R.  852. 

(Penn.)    5;  Sterritt  v.  Bull,   1   Binn.  "Eastman  v.  Moulton,  3  N.  H.  156. 
(Penn.)     237;      Prince    v.    Smith,    4 


Sec.  132.]  Entries  in  Course  of  Business.  395 

made  b}-  another.^''  If  it  clearly  appear  tiiat  the  entries  are  not 
original,  either  upon  inspection  or  from  extrinsic  testimony,  tliey 
are  to  be  withheld  as  incompetent  evidence.^^  Being  original 
entries,  the  question  arises  upon  the  form  in  which  they  are  to  be 
kept.  Among  the  European  continental  nations,  which  have 
adopted  the  civil  law  as  the  basis  of  their  own,  this  proof  by  book 
account  also  prevails.  If  we  judge  of  its  form  from  the  French 
Code,  and  the  more  approved  French  writers  on  jurisprudence, 
who  confine  it  to  merchants  of  good 'standing,  it  will  be  seen  that 
the  avenues  tO'  abuse  are  partially  closed  by  the  cautious  manner 
in  which  accounts  must  be  arranged  and  checked  in  order  to  give 
them  the  character  of  competent  proof.^^  Yet  the  book  itself  is 
not  such  evidence  as  will  warrant  a  sentence  in  favor  of  the  party 
producing  it.^^  It  is  but  semi-proof,  which  may  be  rendered  per- 
fect by  the  suppletory  oath  of  the  party.  But  in  many  of  the 
States  of  this  country,  where  this  kind  of  evidence  is  left  to  be 
framed  by  citizens  of  every  occupation  and  every  variety  of  lan- 
guage and  character,  and  that,  too,  in  their  own  way,  any  consid- 
erable degree  of  safety  derived  from  the  forms  of  book-keeping 
is  the  last  thing  to  be  expected.  Yet  books  are  rarely  rejected 
for  a  defect  of  form,  even  in  those  States  where  they  are  not 
brought  down  to  semi-proofs,  and  where,  in  the  hands  of  inex- 
perienced tribunals,  it  is  almost  of  course  that,  being  received, 
they  should  reach  the  effect  of  prima  facie  evidence.  Being- the 
original  or  first  entries  of  the  party  in  his  own  hand,  these  books 
are  the  least  suspicious  when  kept  in  the  form  of  daily  entries  in 
a  single  journal  or  day-book,  of  the  debts  and  credits  of  the  dif- 
ferent persons  with  whom  the  party  deals,  in  the  order  of  dates, 
without  blanks,  chasms  or  marginal  references.  In  France,  if 
any  of  these  requisites  are  wanting,  the  book  is  not  competent  evi- 
denced^ This  is  the  most  perfect  form,  and  one  Avhich  has  never 
been  questioned  in  the  American  courts,  where  book  accounts  are 
received  in  any  way.  But  generally  they  do  not  require  any- 
thing like  these  formalities  in  order  to  render  books  competent. 

^^  Prince    v.    Smith,    4    Mass.    455 ;  Livres   de   Commerce,    art.    12 ;  Poth. 

Eastman  v.  Moulton,  3  N.  H.  156.  des  Obi.  nos.  719,  720. 

"  Cogswell  V.  Dolliver,  2  Mass.  222 ;  '='  1   Dom.,  p.  444,  b.   3.  tit.   6.  §   3, 

Curren     v.     Crawford,     4     S.     &     R.  art.  9. 

(Penn.)    3;   Prince  v.  Smith,  4  Mass.  '"  Code   de   Com.   tit.   2;   des   Livres 

455;  Swins:  v.  Sparks,  7  N.  J.  L.  59.  de  Commerce,  art.  8,  10. 

"Code  de  Com.  Liv.   1,  tit.  2;   des 


396  Evidence.  [Chap.  13 

At  least,  the  entries  should,  in  all  cases,  be  btrongly  and  clearly 
confirmed  by  common-law  evidence,  even  where  the  oath  of  the 
party  is  required.  Still  they  are  competent,  that  is  to  say,  they 
stand  something  above  zero,  though  they  may  come  short  of  the 
standard  of  credibility.  One  striking  instance  is  in  receiving 
entries  kept  ledgerwise ;  that  is  to  say,  where  the  account  of  each 
men  dealing  with  the  party  is  kept  by  itself,  in  a  separate  depart- 
ment of  the  book;  thus  affording  every  facility  for  undetected 
interpolation,  either  ante  or  post  litem  notam.  Yet  such  books 
are  receivable.^^  Books  thus  kept  were  received,  though  the  en- 
tries in  question  were  intermixed  with  various  charges,  notes,  re- 
ceipts and  memoranda  relating  to  the  party's  dealings  with  others, 
in  whatever  blank  spaces  he  happened  to  find,  without  any  regard 
to  the  order  of  dates  or  pages.^® 

But  whether  in  a  day-book  or  ledger  form,  the  entries  must  ap- 
pear to  have  been  made  daily,  or  they  cannot  be  admitted."  If 
it  appears  at  any  stage  or  in  any  way,  that  charges  arising  at  dif- 
ferent dates  were  in  fact  made  at  the  same  time,  the  book  is  not 
evidence. ^^  It  must  also  be  apparent  that  the  entries  were  in- 
tended as  book  charges,  in  account  with  the  identical  party  against 
whom  they  are  offered  in  evidence.^'  If  they  are  kept  merely  as 
a  memorandum  between  the  party  and  another,  they  are  inad- 
missible.^^ Arbitrary  marks  fixed  to  the  entries,  not  intended  to 
charge  the  vendee,  but  merely  to  inform  the  porter  and  prevent  a 
delivery  of  similar  articles  twice,  cannot  be  used  to  aid  in  the  evi- 
dence of  delivery,  especially  if  not  always  made  by  the  same  per- 
son making  the  residue  of  the  entry,  nor  by  the  party  nor  his 
clerk.^^  So,  a  book  kept  by  a  forgeman  to  settle  by  with  his  cus- 
tomers, though  it  name  the  vendees,  and  sometimes  the  price,  is 
not  e\'idence  against  the  latter.^^     It  is  not  an  insurmountable 

=™  Swift's  Ev.   81,  82;     Rodman  v.  562,  57  A.  39;  Eastman  v.  Moulton,  3 

Hoop's    Ex'rs,    1    Ball.     (U.    S.)    85;  N.  H.  156. 

Faxon  v.  Hollis,  13  Mass.  427;  Wil-  =' Ehoades      v.      Gaul,      4      Eawle 

son  V.  Wilson,  6  N.  J.  L.  94;  Cogs-  (Penn.),  404:  Rogers  v.  Old,  5  S.  & 

well  V.  Dolliver,  2  Mass.  217.  R.    (Penn.)    404;  Smith  v.    Lane,   12 

*»  Cogswell  V.  Dolliver,  2  Mass.  217.  id.  80. 

^'^ Eastman    v.    Moulton,    3    X.    H.  "Smith     v.     Lane,     12     S.     &     R. 

156;      Smith     v.     Lane,     12     S.     &  (Penn.)    80. 

R.   (Penn.)   80.  «' Rhoades  v.  Gaul,  an^e. 

"McKnight   v.   Newell,   207    Penn.  '=  Rogers  v.  Old,  5  S.  &  R.   (Penn.) 

404. 


Sec.  132.]  Enteies  in  Course  of  Business.  397 

objection  to  the  competency  of  the  book,  that  there  be  erasures  and 
eorrections.     Its  character  is  not  thus  destroyed  as  a  book  of  orig- 
inal entries.     The  alteration  is  open  to  explanation,  and  the  ab- 
jection goes  to  the  credit  only.*^     But  it  is  a  serious  objection 
against  its  credit;  and  if  gross,  suspicious,  or  unexplained,  it  will 
destroy  the  competency  of  the  book.     And  so  of  any  other  fraudu- 
lent appearances.^*     Xot  only  the  day-book,  but,  if  it  be  posted, 
the  ledger  must  be  produced,  that  it  may  be  seen  what  credits 
there  are.     This  was  held  w^here  post-marks  appeared  on  the  day- 
book. ^^     And  it  is  the  same  in  whatever  way  the  fact  of  posting 
may  be  made  to  appear.     The  book  being  competent  as  a  whole, 
almost  any  series  of  figures,  abbreviations  and  words,  which  can 
be  explained  into  a  signification,  will  do  for  particular  charges 
and  regard  is  always  to  be  had  to  the  party's  degree  of  education, 
the  nature  of  his  employment,  and  the  manner  of  his  charges 
against  others,^®     But  the  charges  must  be   specific;  that  is  to 
say,  they  must  denote  the  particular  work  or  service  charged,  as 
it  arises  daily,  and  the  quantity,  number,  weight,  or  other  dis- 
tinct designation  of  the  materials  or  articles  sold  or  furnished, 
and  attach  the  price  or  value  to  each  itein.^^     Accordingly,  a  brick- 
layer's charge  of  ''190  days'  work"  w^as  rejected;  it  should  be 
placed  in  the  book  daily,  being  entered  at  the  time  as  it  occurs  f^ 
and  a  physician's  charges  "for  medicine  and  attendance,"  and  an- 
other thus :  "thirteen  dollars  for  medicine  and  attendance  on  one 
of  the  general's  daughters  in  curing  the  whooping  cough,"  were 
also  rejected  as  too  indefinite.^®     But  this  is  a  matter  which  must 
reside  very  much  in  the  discretion  of  the  judge,  to  be  exercised 
according  to  the  nature  of  the  subject,  and  its  susceptibility  of  be- 
ing precisely  charged.     Where,  within  this  rule,  to  be  applied  on 
tlie  examination  of  witnesses  and  otherwise,  the  charge  is  suffi- 
ciently specific,  it  will  be  received ;  and  such  was  the  course  in 
fudging  of  a  physician's  bill  and  admitting  it.*"     A  receipt  in 
the  account  book,  purporting  to  be  signed  by  the  vendee,  is  not 

"Sargeant    v.     Pettibone,     1     Aik.  v.    M'Kenzie,    2    Bail.     (S.    C.)    449; 

(Vt.)    355.  Lynch  v.  Petrie,  1  N.  &  M'Cord    (S. 

"Eastman  v.  Moulton.  3  N.  H.  156.  C),    130;  Hagaman's   Case,   4   N.   J. 

''Prince    v.    Sweet,    2    Mass.    569;  L.  370. 

Eastman  v.  Moulton,  3  N.  H.   156.  ^'  Lynch  v.  Petrie,  ante. 

■'"' Prince  V.  Smith,  4  Mass.  455.  ^  Huo^hes    v.     Hampton,     2     Const. 

"McKnight   v.    Newell.    207    Penn.  Rep.-   (S.  C.)    745. 

562,  57  A.  39,  41;   Hughes  v.  Hamp-  "Schmidt   v.    Quin,    1    Rep.   Const, 

ton,  2  Const.  Rep,  (S.  C.)  745;  Lance  (S.  C.)   418. 


398  Evidence.  [Chap.  13 

receivable  in  proof  as  an  original  entry."  If  the  prices  are  not 
carried  out,  the  books  are  imijerfect,  and  if  admissible  at  all, 
prove  nothing  as  to  the  price,  and  the  jury  cannot  guess  at  that ; 
so  the  charge  goes  virtually  for  nothing.^-  "We  have  already  seen 
that,  so  far  from  being  primar)^  evidence,  superior  in  degree  to 
the  mere  oral  testimony  of  disinterested  witnesses,  books  are 
treated  by  the  cases,  according  to  their  true  character,  as  evidence 
secondary  to  common-law  proof.  It  was  in  one  case  hastily  held 
that  the  party's  book  must  be  produced  like  any  other  written  evi- 
dence, as  standing  higher  upon  the  scale,  or  that  its  absence  must 
be  accounted  for,  before  sworn  proof  by  witness  should  be  re- 
ceived.^^  "When  the  party  is  sworn,  the  book  must  be  produced, 
for  there  it  is  the  principal  evidence  ;^''  and  if  it  be  lost,  the  party 
loses  his  oath.*^  In  such  a  case,  the  contents  of  the  book  may  be 
proved ;  but  this  must  be  by  common-law  evidence,  though  the 
party  made  the  entry  himself.  If  proved  by  another  who  made 
the  entries,'  the  book  must  be  in  court,  or  its  absence  accounted 
for ;  and  so  where  the  entries  of  a  third  person,  deceased,  are  the 
subject  of  proof.  In  such  case,  the  contents  of  the  paper  itself 
being  in  question,  they  must  be  proved  like  those  of  any  other 
paper,  by  itself,  if  it  can  be  had.  Xor  will  the  excuse  that  the 
party  resides  at  a  great  and  inconvenient  distance,  be  received." 
The  rule  as  to  showing  the  contents  of  documents  by  themselves 
only  has  been  applied  to  account  books  by  several  cases.*^  But 
extracts  from  the  books  of  foreign  merchants,  verified  by  the  oaths 
of  their  clerks,  were  received,  the  court  saying  it  would  be  un- 
reasonable to  require  the  books  themselves.'*^  It  is  well  settled, 
that  a  party  may,  in  his  discretion,  waive  his  books  altogether, 
and  rely  upon  his  common-law  proof,  by  witnesses  or  otherwise.** 

"Sterritt  v.  Bull,  1  Binn.    (Penn.)  ^' Bell  v.  Keely,  2  Yeates    (Penn.), 

234.  255.     And   see  Lewis  v.   Bacon.   3  H. 

"Hagaman's  Case,  6  N.  J.  L.  370.  &  M.    (Va.)    89.     See  Elms  v.  Chee- 

"  Kelly     V.     Holdship,     1     Bro^vne  vis,  2  M'Cord   (S.  C),  349. 

(Penn.).'  36.  ■"•  Levenworth      v.      Phelps,      Kirby 

"Nicholson   v.   Withers,   2   M'Cord  (Conn.),  71:  Cambioso  v.  Maffett,   2 

(S.  C),  428.  Wash.    (U.   S.  C.  C.)    101;   Nicholson 

"  Prince  v.  Smith,  4  Mass.  455.  v.   Withers,  2  M'Cord    ( S.   C. ) ,  428 ; 

*»  Smith   V.    Peay,    2   Bail.    (S.    C.)  Read   v.    Barlow,    1    Aik.    (Vt.)    145^ 

394.  147,    148,   per    Skinner,   C.    .J.  ;Pal- 

"Keller   v.    Ord,    1    Ball.    (U.    S.)  mer   v.   Green,   6   Conn.   Rep.    14,    17 j 

310:  Herring  v.  Lew,  4  Mart.    (La.  Bernham     v.     Adams,     5     Vt.     313;. 

N.    S.)    383;   Smith   v.   Peay,   2   Bail.  Whiting  v.  Corwin,  5  Vt.  451. 
(S.    C.)    394;   Nicholson   v.    Withers, 
2  M'Cord   (S.  C),  428. 


Sec.  132.]  Entries  in  Couese  of  Business.  399 

The  party  may  take  his  account  and  proof  from  his  adversary's 
book.  But  the  non-production  of  his  own  book  would  many 
times,  and  especially  if  called  for  by  his  adversary,  be  a  heavy 
circumstance  against  him.^*^  Books  are  evidence,  both  of  the 
items  charged  and  the  price  or  value  carried  out,  subject  to  in- 
quiry on  other  evidence."^  Properly  attested,  they  are  prinm 
facie  evidence  of  the  delivery  of  articles  of  merchandise"^ — in- 
deed, both  of  sale  and  delivery ;  and  in  case  of  services,  they  are 
evidence  of  retainer  to  do  the  service,  the  doing  of  it,  and  the  de- 
livery of  materials  in  the  course  of  the  service.^^  The  book  is  to 
be  taken  together,  with  its  charges  and  credits,  especially  where 
both  are  of  the  same  date.^"  The  party's  books  would  be  admis- 
sible on  a  collateral  point  in  a  cause,  as  if,  in  an  action  to  recover 
money  from  the  defendant,  it  should  be  material  to  determine 
the  state  of  his  accounts  with  another.^^  But  it  was  afterwards 
held  that,  the  third  person  being  himself  a  witness,  and  his  oath 
better  evidence  than  his  books,  he  should  be  produced.  The  case 
would  not  then  come  within  the  necessity  on  which  this  kind  of 
proof  is  founded.^®  Entries  made  upon  loose  sheets  of  paper 
are  not  to  be  presumed  to  have  been  made  as  daily  minutes  of  the 
parties'  business  transactions,  and  are  not  admissible  in  evidence. 
To  render  a  book  evidence,  it  must  appear  to  have  been  regularly 
kept  in  such  a  manner  as  to  afford  a  strong  presumption  of  its 
accuracy ;  in  other  words,  the  charges  in  the  handwriting  of  the 
party  must  appear  in  such  a  state  that  they  may  be  presumed  to 
have  been  his  daily  minutes  of  his  .transactions  and  business." 
But  if  the  book  account  appears  to  have  been  regularly  kept,  and 
the  charges  were  made  at  or  about  the  time  the  work  was  done, 
or  materials  found,  it  will  not  be  rejected  merely  because  it  is 
proved  by  the  party's  suppletory  oath  that  the  entries  were  not 
invariably  made  on  the  same  day  the  work  was  done,  or  articles 
furnished.^^     jST either  the  manner  nor  the;  form  in  which  the  book 

'"'Palmer  v.  Green,  6  Conn.  14.  ^"^  Mifflin   v.   Bingham,    1    Dall.    (U. 

"Ducoign    V.    Schreppel,    1    Yeates  S.)   272. 

(Penn  )    347.  '^  Juniata  Bank  of  Pennsylvania  v. 

«  Foster  v."  Sinkler,  1  Bay   (S.  C),  Brown,  5  S.  &  R.    (Penn.)  226. 

45  "  Richardson    v.    Emery,    2    N.    H. 

"M'Bride  v.  Watts,  1  M'Cord    (S.  220. 

C  )    384.  °^  Morris      v.       Briggs,      3       Cush. 

"Harrington  v.  Hall,  2  Aik.   (Vt.)  (Mass.)   342. 
175. 


400  Evidence.  [Chap.  13 

is  kept  is  material,  so  that  it  appears  to  have  been  fairly  and  hon- 
estly kept;  thus,  an  account  for  work,  entered  on  one  leaf  of  a 
book  with  no  intervening  charges,  is  admissible,  supported  by 
the  suppletory  oath  of  the  party,  though  the  entry  is  in  pencil.^® 
Where  entries  are  produced  which  were  made  by  persons  acting 
for  others,  as  agents,  clerks,  etc.-,  some  proof  of  agency  is  required, 
although,  if  the  principal  can  be  shown  to  have  adopted  or  acted 
upon  the  entries,  this  would  doubtless  be  sufficient.  Thus,  in  a 
Is'ew  York  case,^"  in  an  action  against  one  of  the  directors  of  a 
fair  association  for  goods  sold  and  delivered,  an  entry  of  an  order 
in  the  plaintiff's  order  book,  headed  with  the  defendant's  name, 
^as  held  to  be  competent  to  show  that  the  plaintiff  acted  on  the 
-order  and  charged  the  goods  to  the  defendant.  Without  proof 
that  the  entry  was  made  by  some  person  having  authority  to  make 
it,  it  is  not  admissible,  although  made  many  years  before,  in  one 
case  one  hundred  and  sixty  years  before  it  was  offered  in  evi- 
'dence.^^  But  where  the  books  came  from  the  proper  custody,  and 
contain  strong  internal  evidence  of  tlieir  genuineness,  slight  proof 
■of  the  authority  or  official  character  of  the  writer  will  be  suffi- 
cient to  let  them  go  to  the  jury,®^  and,  indeed,  according  to  the 
-cases  cited,  if  the  internal  evidence  of  their  genuineness  is  strong, 
this  may  be  sufficient  of  itself.  It  is  not,  in  the  case  of  books  of 
account  kept  by  a  deceased  person,  any  objection  to  its  admissi- 
bility that  it  contains  entries  in  his  interest,  as  well  as  against  it. 
'Thus,  where  the  book  contained  entries  of  sums  received  by  the 
deceased,  upon  one  side,  and  upon  the  other  entries  of  sums  paid 
by  him,^  it  was  held  to  be  admissible,  even  though  the  books  shew 
a  balance  in  his  favor. ^^  Entries  made  by  a  deceased  clerk  or 
agent,  made  in  the  usual  course  of  business,  as  required  in  the  line 
■of  his  duty,  upon  proof  of  his  handwriting  in  the  book,  and  the 
hook,  upon  inspection  by  the  court,  appearing  to  be  fairly  kejjt,  are 
evidence  of  the  facts  stated  therein.^"     But  in  order  to  give  them 

"Gibson       v.       Baily,       13       Met.  "Brume    v.    Thompson,    6    Marsh. 

(Mass.)    537.                  *  36;     Leter  v.  Warren.  5  Q.  B.  773; 

"Wilcox    V.    Silver    Plate    Co.,    72  Doe  v.  Thrnne.  10  East,  206. 

N.  Y.  17.  "  Raure'  v.  Brenton,  3  M.  &  R.  268. 

"Manby   v.    Curtis,    1    Price,   225;  "Williams    r.    Graves.    8    C.    &    P. 

Davies   v.    Morgan,    1    C.    &  J.    590;  592;     Moone  v.  Deandee,   2  Y.  &  0. 

Short  V.  Lee,  2  J.  &  W.  466;  Stand  259  n.;    Clark  v.  Wllmot,  1  Y.  &  C. 

V.    Bradford,    2    Penn.    384;  Jermain  53. 

V.   Dennison,   6   X.   Y.   276;  Richard-  "Dow  v.  Sawyer,  29  Me.  117. 
«on  V.  Kimball,  28  Me.  463. 


Stec.  132.]  Entries  in  Course  of  Business.  _  401 

that  effect,  the  entries  must  appear  to  have  been  made  in  the  usual 
course  of  business  and  of  his  employment/'^  the  books  to  have  been 
properly  kept,®^  and  the  items  charged  therein  must  be  proper 
subjects  of  book  charge/*  as  a  party  can  not  be  permitted  to  make 
evidence  for  himself  by  making  entries  up'on  his  books  of  account 
as  to  matters  which  do  not  properly  enter  into  or  form  a  matter 
of  account;  and  in  this  connection  it  may  be  said  that  nothing 
can  be  the  subject  of  book  account  which  cannot  be  recovered 
under  the  general  counts  in  assumpsit.'^^  Thus,  in  the  case  last 
cited,  a  factor  agreed  to  return  to  his  principal  all  property  re- 
maining unsold  in  his  hands  after  the  termination  of  his  agency. 
But  he  failed  to  do  so,  and  the  property  was  charged,  to  him  in 
account.  The  court  held  that  inasmuch  as  it  was  not  shown  that 
the  property  had  been  converted  into  money,  a  recovery  could 
not  be  had  against  the  defendant  therefor  in  bood  account.  The 
proper  remedy  was  trover. 

An  attorney's  bill  with  an  indorsement  upon  it,  "March  4, 
1815,  delivered  a  copy  to  C.  D.,"  which  is  proved  to  be  in  the 
handwriting  of  a  deceased  clerk,  Avhose  duty  it  was  to  deliver  a 
copy  of  the  bill,  and  proved  to  have  existed  at  the  date,  has  been 
held  to  be  evidence  to  prove  the  delivery  of  the  bill.^*^  It  has 
been  held  that  a  banker's  ledger  was  receivable  in  evidence,  in  an 
actionj  between  the  assignees  in  bankruptcy  of  a  customer  and  a 
third  party,  to  show  that  the  customer  at  a  certain  time  had  no 
funds  in  the  banker's  hands,  without  calling  the  clerks  who  made 
the  entries  therein.'^^  An  entry  of  dishonor  of  a  bill,  made  by  a 
notary's  clerk  in  the  usual  course,  of  business,  is  evidence  of  the 
fact  of  dishonor,  after  the  clerk's  decease.^^ 

Upon  the  same  principle,  contemporaneous  entries  by  a  de- 
ceased shopman  or  servant  in  his  master's  books,  in  the  ordinary 
course  of  business,  stating  the  delivery  of  goods,  are  evidence  for 

^^Lockey  v.  Schreiber,   17  Mo.   146.  '"Poole  v.  Dicus,  1  N.  C.  649.       In 

"Kent  V.  Garvin,   1  Gray    (Mass.),  Marks    v.    Lahee,    3    N.    C.    408,    an 

148  entry    by    a    deceased    clerk    of    the 

''Henshaw      v.      Davis,      5      Gush.  plaintiff's    attorney,    in    a    day-book, 

(Mass.)    145;   Earle  v.  Sawyer,  6  id.  stating  a   tender  by  him  and  refusal 

142 ;   Inslee  v.  Prall,  23  N.  J.  L.  457 ;  by   the  defendant,   was   held   evidence 

Cale  V    Dial,  8  Tex.  547.  of  a   replication  to  that  effect;      but 

'^  Kidder  v.  Lawless,  44  Vt.  303.  there    was    a    previous    entry    of    a 

"  Chapneys  v.  Peck,  1   Stark.  404.  ■  recdijt  by  him  of  the  money  for  the 

"Furness  v.  Cope,  5  Bing.  114.  purposes  of  such  tender. 

26 


402  Evidence.  [Chap.  13 

his  master  of  such  deliverj.^^  But  an  entry  of  a  hiring  at  cer- 
tain wages,  in  the  deceased  master's  private  book,  with  a  memo- 
randum of  payment,  is  admissible  evidence  ititer  alioSj''*  for  it  was 
neither  his  duty  to  make  it,  nor  was  he  interested  in  making  it 
in  the  proper  sense  of  ^'interest."  An  entry  purporting  to  be  the 
substance  of  a  lease  made  by  the  lord  of  a  manor,  contained  in  a 
book  of  his  steward,  200  years  old,  is  not  evidence  of  the  lease 
either  as  secondary  evidence  or  as  an  entry  made  in  the  course  of 
duty  or  business.'^ 

In  order  to  render  such  entries  evidence,  it  must  appear  that 
the  shopman  is  dead ;  that  he  is  abroad,  and  not  likely  to  return, 
is  not  sufficients^  The  entry,  too,  must  be  by  the  person  who 
actually  did  the  act  recorded  by  it.  Thus,  an  entry  of  goods 
sold,  made  by  a  wdtness  on  the  dictation  of  A.,  who  had  received 
information  of  the  sale  from  B.,  a  servant  of  the  vendor,  whose 
duty  it  was  to  report  the  sale  to  A.,  was  rejected  as  evidence  of 
the  sale,  tliough  A.  and  B.  were  both  dead.'^^  Where  a  person  em- 
ployed to  serve  a  notice  on  K.  brought  back  the  duplicate  notice 
indorsed  as  so  served,  but  stated  orally  that  he  had  delivered  it 
to  W.,  it  was  held  that,  after  the  death  of  the  person  serving,  it 
was  not  competent  to  give  in  evidence  his  oral  statement  of  serv- 
ice on  W.^^  An  entry  in  a  letter-book  kept  by  a  deceased  clerk  in 
the  course  of  duty  is  secondary  proof  of  the  contents  of  the  letter 
sent,  and  of  the  posting  of  it,  if  that  was-  the  course  of  businessJ^ 

By  Stat.  7  Jac.  1,  c.  12,  s.  1,  it  was  provided  that  the  shop-book 
of  a  tradesman  shall  not  be  evidence  in  any  action  for  wares  de- 
livered, or  work  done,  above  one  year  before  the  bringing  of  the 
action,  except  the  tradesman  or  his  executor  shall  have  obtained 
a  bill  of  debt  or  obligation  of  the  debtor  for.  his  said  debt,  or  shall 
have  brought  against  him,  or  his  executors,  some  action  for  the 
said  debt  within  a  year  next  after  the  delivery  of  the  wares,  or 
the  w^ork  done.  By  sec.  2,  the  act  was  not  to  extend  to  traffic, 
or  dealing  between  merchant  and  merchant,  merchant  and  trades- 
man, or  tradesman  and  tradesman,  for  anything  within  the  com- 

"  Price  V.  Torrinston,  Ld..   1   Salk.  "^  Cooper  v.  Marsden.  1  Esp.  1. 

285;   Patteshall    v.  ^Turford,    3    B.    &  "  Brain  v.  Preece,  11  M    &  W    773. 

^^1    398  "Stapvlton   v.    Clough,   2   L.   &   B. 

See,    also.    Doe   v.    Padwick   v.    Witt-       Hagedorn  v.  Reid,  ib.  3,9. 
comb,  6  Exch.  601. 


Sec.  132.]  E:xTE,iES  in  Course  of  Business.  403 

pass  of  their  mutual  trades  aud  merchandise.  This  statute  seems 
to  recognize  the  previous  admissibility  of  shop-books.  But  the 
act  was  never  of  much  practical  importance,  and  the  admissibility 
of  such  books  at  common  law,  in  favor  of  the  tradesman,  must 
generally  depend  on  the  principles  already  referred  to.^° 

Although  an  entry  made  in  the  course  of  office,  reporting  facts 
necessary  to  the  performance  of  a  duty,  may  be  admissible,  yet 
the  statement  in  it  of  other  extraneous  circumstances,  however 
naturally  they  may  find  a  place  in  ther  narrative,  is  no  proof  of 
these  circumstances.  Thus,  a  return  by  a  sheriff's  officer  of  an 
arrest  at  a  specified  place  is  not  evidence,  inter  alios,  of  the  place 
of  arrest.^^  This  case  illustrates  a  distinction  between  declara- 
tions against  interest  and  declarations  made  in  the  course  of 
office  or  business.  The  former  declarations  are  evidence  of  all 
the  facts  stated;  the  latter,  only  of  the  facts  which  it  was  the 
business  of  the  officer  or  writer  to  state.^^  So,  entries  against 
interest  are  evidence,  whensoever  made.  The  latter  entries  must 
generally  be  contemporaneous!  with  the  act  done.^^ 

'"Symonds    v.    Gas"  Light    Co.,    11  7o9;  23  L.  J.,  C.   P.   123,  a  distinc- 

Beav.  283.  tion  is  incidentally  made  per  cur.  be- 

^'  Chambers  v.  Bernasconi,  1  C,  M.  tween  declarations  "  in  the  course  of 

^  R-  347.  business,"   and    declarations    "  in    the 

'=Percival  v.  Xanson,  7  Exch.   1.  course  of  duty;"    but  the  cases  cited 

"^  Smith  V.  Blakey,  L.  R.,  2  Q.   B.  recognize  no  such  distinction. 
326.     In  Edie  v.  Kingsford,  14  C.  B. 


CHAPTER  Xiy. 

Res  Gestae. 

Section  133.  What  is  general  rule? 

134.  Personal  injuries  and  their  cause. 

135.  Statements  made  by  applicant  for  life  insurance. 

136.  Statements  made  before  the  principal  fact.     Intent. 

137.  Collateral  matters  connected   with   principal   fact. 

138.  Declarations  as  to  title  and  possession  of  lands. 

139.  Spontaneity  of  the  acts  and  declarations  essential ;  what  is. 

140.  Acts  and  statements  after  the  principal  fact. 

141.  Declarations    of    conspirators,    when    evidence    against    co-con- 

spirators. 

142.  Statements  of  conspirators,  when  not  part  of  the  res  gestae. 

143.  Writings  in  possession  of  conspirators  before  or  after  apprehen- 

sions. 

Sec.  133.  What  is  General  Rule. 

It  is  a  well-settled  rule  of  evidence  that  the  declarations  and 
acts  of  the  principal  parties  to  an  act,  as  well  as  the  circumstances 
surrounding  them  and  accompanying  the  transaction  at  the  time 
of  the  principal  fact,  may  be  given  in  evidence  in  a  controversy 
between  the  parties  relative  thereto  as  a  part  of  the  res  gestae, 
which  are  calculated  to  show  the  nature  of  the  act,  and  are  in  har- 
mony "\nth  it.  But  in  order  to  he  admissihle  they  must  he  imr 
mediately  connected  with  the  materi<il  inquiry  involved  in  the 
issue,  and  must  have  occurred  at  the  time  of  the  transaction,  or 
if  not  precisely  concurrent,  so  closely  connected  thereivith  that 
they  may  he  said  to  spring  from  it,  and  thus  tend  to  explain  it. 
They  must  he  so  closely  connected  ivith  the  principal  act  in  point 
of  time  as  to  he  spontaneous  and  voluntary,  and  to  preclude  all 
possible  idea  of  deliheraie  design.  Indeed,  it  has  been  said  that 
the  declarations  or  acts  must  be  the  natural  or  inseparable  con- 
comitants of  the  princij)al  fact  in  controversy,  so  that  they  may 
be  presumed  to  have  been  induced  by  the  same  motive  that  led 
to  the  act  itself,  and  so  closely  allied  thereto  in  point  of  time  as 
obviously  to  form  a  part  of  the  transaction,  and  must  be  calcu- 
lated to  unfold  its  nature  and  qualitA'.  If  there  is  anything 
which  raises  a  suspicion  that  thev  were  intended  to  deceive,  and 

(404) 


Sec.  133.] 


Res  GestxVe. 


405 


•were  made  or  done  in  bad  faith,  the  court  not  only  may,  but 
should,  exclude  them.^ 

In  order  to  make  declarations  a  part  of  the  res  gestae  they  must, 
in  all  cases,  he  contemporaneous  with  the  main  fact;  they  must 
have  been,  made  at  the  time  of  the  act  done,  to  which  they  relate, 
and  must  he  well  calculated  to  unfold  the  nature  and.  quality  of 
the  facts  they  were  intended  to  explain,  and  to  so  harmonize  them 


^Riggs   V.    State,   6   Cold.    (Tenn.) 
517;   Elkins  v.  Hamilton,  20  Vt.  627; 
Carter     v.     Buchanan,     3     Ga.     513; 
Fifield    v.    Richardson,    34    Vt.    410; 
Atherton   v.   Tilton,   44    N  .   H.   4.52 ; 
Meek      v.      Perry,      3G      Miss.      100; 
Springer     v.     Droach,    32     Ind.    486; 
Crowther    v.    Gibson,    19    Mo.    365; 
Lund      V.      Tvngsborough,      9      Cush. 
(Mass.)    36;  ^  Koch  v.  Howell,  6  W. 
&  S.  (Penn.)  350;  Clayton  v.  Tucker, 
"0  Ga.   452;   Curtis   v.   Avon,  &c.,  R. 
R.  Co.,  49  Barb.    (N.  Y.)    148;   Stew- 
art V.  Hanson,  35  Me.   506;   Clark  v. 
Rush,    19    Cal.    393;   Russell    v.   Fns- 
bee,  19  Conn.  205.     And  this  is  appli- 
cable   to    actions    civil    or    criminal. 
Hamilton  v.  State,  36  Ind.  280.       If 
a  declaration  is  in  itself  a  fact  in  the 
transaction,  or  is  made  by  a  person 
while  doing  an  act,  and  serves  to  ex- 
plain it,  it  is  a  part  of  the  res  gestae; 
but  if  it  is  merely  a  recital  of  a  past 
transaction,  it  is  not,  although  it  may 
have  some  relation  to  an  act  which  a 
person  may  be  doing  when  he  makes 
such   declaration.     Haynes   v.   Rutter, 
24  Pick.    (Mass.)    242;   Bank  v.  Ken- 
nedv,  17  Wall.    (U.  S.)    19;   People  v. 
Brotherton,     47     Cal.     388;      Sill     v. 
Reese,    id.    294;       Landell    v.    Hotch- 
kiss,   4   N.   Y.    Sup.   Ct.   685;   Burlew 
v.   Hubbell.    1    id.   235;   Parker   v.    R. 
R.   Co.,    109   Mass.   449;      Jordant   v. 
Osgood,  id.  457.     Declarations  or  cir- 
cumstances   accompanying   an    act    in 
controversy,     may     be     proved     in    a 
proper   case,    as    connected    with    and 
explanatory     of     the     principal     act, 
although   they   might    not   be   admis- 
sible as  independent  evidence.    Hoyer 
V.  Stevens,  1  Woodb.  &  M.   (U.  S.  C. 
C. )  290;   Jones  v.  Brownfield,  2  Penn. 
St.    55;   United   States   v.   Omeara,    1 
Cranch    (U.   S.  C.  C),   165;   Webb  v. 
Kelly,    1    Ala.    349:      Yarborough    v. 
Moss,  9  Ala.  382;   Hoper  v.  Edwards, 
20  Ala.  528;   Sanford  v.   Howard,  29 


Ala.   684;  Bragg  v.   Massie,   38   Ala. 
89;   Cornelius  v.  State,   12  Ark.   782; 
Robinson  v.  Lane,   19  Ga.   387;   Rigg 
V.  Cook,  9  111.  336;   Strange  v.  Dono- 
hue,  4  Ind.  327;   Austin  v.  Swank,  0 
Ind.    109;   Franklin   v.   Woodland,    14 
La.  Ann.  188;   Corinth  v.  Lincoln,  34 
Me.     310;      Stewart    v.     Hanson,     35 
Me.  506;   Duvall  v.   Medtart,  4  H.  & 
J.    (Md.)     14;      Curtis   v.   Moore,    20 
Md.  93 ;  Elliott  v.  Stoddard,  98  Mass. 
145;   Plumer  v.  French,  22  N.  H.  450; 
Johnson    v.    Elliott,    26    N.    H.    67; 
Tucker    v.    Peaslee,    36    N.    H.     167; 
State  V.  Huntley,  3  Ired.    (N.  C.)   L. 
418;   Slitt  V.  Wilson,  Wright   (Ohio), 
505;   Wetmore  v.  Mell,  1  Ohio  St.  26; 
Posterns    v.     Posterns,    3     W.    &    S. 
(Penn.)   127;  Hood  v.  Hood,  2  Grant 
(Penn.),    Cas.    229;   Rees    v.    Living- 
ston,  41    Penn.    St.    113;      Turpin   v. 
Brannon,    3    McCord     (S.    C),    261; 
Martin  v.   Simpson,  4  id.  262;   Pains 
V.    .Jenkins,    2    Rich.     (S.    C.)     106; 
Blair     v.     Coffraan,     Overt.      (Tenn.) 
176;  Kerby  V.  State,  7  Yerg.   (Tenn.) 
259;   Evans   v.   Jones,   4  id.   461;   El- 
kins V.  Hamilton,  20  Vt.  627;   Gillet 
V.  Phelps,  12  Wis.  392.     But  to  make 
the   declarations  of   a   party  evidence 
in    his    favor,    as   a    part   of    the    res 
gestae,  they  must  be  connected   with 
the  material  fact  or  inquiry  involved 
in   the    issue.     Tomkins    v.    Reynolds, 
17   Ala.   109.     Carter  v.   Buchanan,   3 
Ga.  573;  McKee  v.  People,  36  N.  Y. 
113;   Mitchum  v.   State,   11  Ga.   615; 
Cole    V.    Cheshire,    1    Gray     (Mass.), 
441;      Mason     v.     Palmer,     8     Allen 
(Mass.),    337;   People    v.   Vernon,    35 
Cal.  9;  Hundy  v.  Johnson,  5  Md.  450; 
Wright    v.    Boston,    126    Mass,    161 ; 
Sessions  v.  Little,  9  N.  H.  271;  State 
V.  Shelledy,  8  Iowa,  477  ;   Steam  Nav- 
igation   Co.    V.     Dandridge,    8    Gray 
(Md.),  248;  Cramer   v.    Shrimer,    18 
Md.   140;     Hall  v.  James,  3  McCord 
(S.    C),   222.     In    order    to   be      ad- 


406 


Evidence. 


[Chap.  14 


as  obviously  to  form  one  transaction}  The  entire  value  of  this 
class  of  evidence  dei^nds  upon  its  spontaneity,  and  is  predicated 
upon  the  idea  tlmt  being  spontaneous,  springing  from  the  act 
itself,  and  forming  a  part  of  it  in  point  of  time,  before  any  idea 
of  deliberate  design  or  purpose  to  make  evidence  for  each  other 
has  entered  the  minds  of  the  parties,  it  tends  to  explain,  unfold 
and  throw  light  upon  tlie  transaction. 


missible.  thev  must  be  so  connected 
with  some  material  act  as  to  explain 
or  qualify  it,  or  show  the  intent  with 
which  the  act  was  done.  Thus,  in  an 
action  brought  by  A.  against  B.  as 
the  owner  of  a  certain  brig  in  which 
A.  had  shipped  merchandise,  for  the 
non-delivery  of  such  merchandise,  it 
appeared  that  B.  was  the  general 
owner  of  the  brig,  and  that  C,  on 
the  17th  of  September,  and  before, 
■was  the  authorized  master;  but  that 
B.,  on  the  ISth  of  September,  took 
from  on  board  of  the  brig  her  papers 
and  put  them  into  the  custody  of  D., 
which  were  never  returned  to  the 
brig;  and  that  said  merchandise  was 
shipped  after  this  transaction.  B. 
claimed  that  he,  at  this  time,  re- 
voked the  authority  of  C.  as  master; 
and  that  C.  then  surreptitiously  ob- 
tained other  papers,  and  ran  off  with 
the  vessel,  sailing  her  without  any 
authority  from  B.  To  establish  this 
claim,  B.  introduced,  with  other  evi- 
dence, the  testimony  of  U.,  that  B., 
when  he  delivered  the  papers  to  him, 
said  that  "  C.'s  wife  intended  to  go 
in  the  brig,  and  if  so,  he  was  fearful 
there  would  be  difficulty,  and  he  could 
not  let  the  vessel  go;  he  did  not  want 
the  vessel  to  go  to  sea,  if  C.'s  wife 
was  going  in  her."  It  was  held  that 
these  declarations,  so  made,  were  ad- 
missible for  the  purpose  for  which 
they  were  offered.  Russell  v.  Fris- 
bie,"^  19  Conn.  205.  But  where  there 
is  no  immediate  connection  between 
the  act  and  the  declaration,  it  cannot 
be  regarded  as  a  part  of  the  res  ges- 
tae. Thus,  where  a  party,  having 
taken  up  and  removed  an  ancient 
fence,  put  down  a  stone  in  one  of  the 
post-holes,  where  it  remained,  and 
the  next  day  he  declared  that  he  put 
it  there  as  a  bound,  it  was  held,  that 
this  declaration  was  not  so  connected 
with  the  act  done  as  to  constitute  a 


part  of  it,  and  was,  therefore,  inad- 
missible evidence  for  such  party. 
Xoyes  v.  Ward,  19  Conn.  2.50. 

^HosMER,  J.,  in  Eves  v.  Tuttle.  3 
Conn.  250;  Mitchum  v.  State,  11  Ga, 
615.  Res  f/cstae,  says  the  court  in 
Carter  v.  Buchanan,  3  Ga.  513,  are 
the  circumstances,  facts  and  decla- 
rations ichich  pretc  out  of  the  tnain 
fact,  are  contemporaneous  icith  it, 
and  serve  to  illustrate  its  character. 
Where  the  question  was  whether  cer- 
tain property  taken  under  execution 
belonged  to  the  judgment  debtor,  it 
was  held  that  statements  by  the 
debtor  to  a  clerk  employed  by  him, 
as  to  whom  he  was  employed  for, 
were  admissible  as  part  of  the  res 
gestae.  iStatements  by  the  party  in 
possession  of  certain  piopertj',  that 
tiie  business  was  his,  and  was  only 
run  in  his  father's  name  for  protec- 
tion, were  held  inadmissible,  as  being 
something  more  than  merely  explana- 
tory of  the  possession.  Sweet  v. 
Wright,  57  Iowa,  510.  The  declara- 
tion of  a  person  in  possession  of  land, 
that  he  took  possession  as  agent  of 
another,  is  admissible  in  evidence  as 
a  part  of  the  res  gestae  in  action 
against  his  alleged  principal.  Kirk- 
land  v.  Trott,  66  Ala.  417.  Upon 
the  trial  of  an  issue  as  to  whether 
certain  notes  were  paid,  the  testi- 
mony of  the  party  claiming  to  have 
paid  them,  that,  in  the  absence  of  the 
other  party,  he  threw  them  into  a 
stove,  calling  the  attention  of  by- 
standers to  the  fact  that  they  were 
the  notes  in  controversy,  is  inadmis- 
sible, as  is  similar  testimony  on  the 
part  of  the  bystanders.  Cumins  v. 
Leighton,  9  111.  App.  186.  On  trial 
of  A.  for  rape  upon  B.,  it  was  held 
that  the  circumstances  of  an  assault 
by  A.  upon  C,  B.'s  father-in-law, 
when  C.  came  to  her  rescue  during 
her  struggle  with  A.,  were  part  of  the 


Sec.  134.] 


Res  Gestae. 


407 


Sec.  134.  Personal  Injuries  and  their  Cause. 

It  is  for  this  reason,  and  upon  this  ground,  that  the  declarations 
of  a  party  who  has  been  injured  and  is  suffering  from  the.  effects 
of  the  injury,  made  during  snch  period  of  suffering,  are  admis- 
sible to  show  the  extent  of  such  suffering.^  Indeed,  whenever 
the  bodily  or  mental  feelings  of  a  person  are  material,  tlie  usual 
expression  of  such  feelings  made  at  the  time  in  question  is,  as  to 
such  facts,  original  evidence.  If  they  were  the  natural  language 
of  the  affection,  whether  of  body  or  mind,  they  furnish  satisfac- 
tory and  generally  the  only  evidence  of  its  existence,  leaving  it 
for'  the  jury  to  say  whether  they  were  real  or  feigned.^     Where 


res  gestae,  and  B.  might  testify  that 
C.  was  dead  at  the  time  of  the  trial. 
Thompson  v.  State,  11  Tex.  App.  51. 
In  an  action  against  a  constable  for 
selling  certain  hogs  belonging  to  the 
plaintiff,  as  the  property  of  the  per- 
son  in   possession,   the   declaration   of 
such   person   that   the   hogs   belonged 
to  the  plaintiff,  made  before  the  levy, 
was   held   admissible,   as   part   of   the 
res  gestae,  showing  the   character   of 
the  possession,  and  as  against  the  de- 
fendant claiming  under  her.        Sharp 
V.  Miller,  3   Sneed    (Tenn.),  42.       In 
^n  action  upon  an  agreement  by  the 
defendants,  that  P.  should  account  to 
the  plaintiff  for  certain  goods  sold  by 
the  later  to  P.,  the  testimony  of  the 
plaintiff  in   reference  to  the  state  of 
accounts  between  him  and  P.  was  held 
admissible,     although     it    necessarily 
introduced       conversations       between 
them,   as    such   conversations    were   a 
part  of  the  res  gestae.     Fox  v.  Park- 
er,  44   Barb.    (N.  Y.)    541.        An  ac- 
tion was  brought  upon  a  bond  given 
to    release    a    barge    which    had   been 
-attached  to  enforce  a  lieu  upon  it  for 
lumber    furnished    to    the    builder    by 
the   plaintiff.     It   was   held   that  dec- 
larations of   the  builder's   agent  who 
purchased    the    lumber,    made    to    the 
plaintiff   while   transacting   the   busi- 
ness,  as  to  the  person  for   whom   he 
purchased   it,  and   as   to  the   amount 
thereof    used    in   building   the    barge, 
were    admissible   as    part    of    the    res 
gestae.     Hoppy   v.   Mosher,   47    Barb. 
(N.  Y.)  501. 

*  A  witness  who  observed  the  symp- 
toms of  mental  pain  and  anguish  can 
testify  to  that  fact.      (Anguish  from 


slander,)  Kidder  v.  Bacon,  74  Vt. 
203,  52  A.  322.  Complaint  by  a 
plaintiff  of  present  pain  is  admissible 
in  Alabama.  Kan.  City  M.  &  B.  Pv. 
Co.  V.  Butler  (Ala.,  1905),  38  So. 
1024.  The  expressions  of  present 
existing  pain  or  its  location  are  ex- 
ceptions to  the  general  rule  which  ex- 
cludes hearsay  evidence.  Gosa  v. 
Southern  Railway,  67  S.  C.  347,  45 
S.  E.  810.  Exclamations  of  pain  and 
actions  indicating  pain  are  part  of 
the  res  gestae.  Oliver  v.  Columbia 
N.  &  L.  R.  Co.,  65  S.  C.  1,  43  S.  E. 
307.  Expressions  or  remarks  indi- 
cating present  pain  not  in  reply  to 
questions  and  not  narrative  in  nature 
may  be  admissible  as  part  of  the  res 
gestae  although  made  three  days 
after  the  accident.  Bredlau  v.  York, 
115  Wis.  554,  92  N.  W.  261.  Com- 
plaints of  pain  made  to  one  not  an 
attending  physician  a  long  time  after 
the  accident  are  admissible  in  Indi- 
ana. Indiana  Ry.  Co.  v.  Maurer,  160 
Ind.  25.  66  N.  E.  R.  156.  Com- 
plaints of  pain  made  to  a  servant 
after  the  injury  are  not  competent  in 
Illinois  as  such  complaints  are  ad- 
rni'^sible  only  when  made  at  the  time 
of  tlie  injury  or  when  made  to  a  phy- 
sician during  treatment.  Lake  St. 
Elevated  R.  "Co.  v.  Shaw,  203  111.  39, 
67  N.  E.  R.  374.  Illinois,  &c.,  R.  R.  Co. 
V.  Sutton,  42  111.  438;  Gray  v.  Mc- 
Laughlin, 26  Iowa.  279;  Jex  v.  Board 
of  Education.  1  Hun  (X.  Y.),  157; 
Burnham  v.  State.  38  Tex.  662. 

=*  Phillips  V.  Nullv.  29  Ala.  628; 
Hyatt  V.  Abrams.  '  16  Mich.  ISO; 
Howe  V.  Plainfield.  41  K.  H.  135; 
Perkins    v.    Concord.    44   X.    H.    223; 


408 


Evidence. 


[Chap.  14 


the  plaitniff  claimed  serious  mental  injury  arising  out  of  an  acci- 
dent evidence  of  his,  statements  at  any  time  during  the  alleged 
mental  condition  is  admissible  as  a  verbal  act.^  Therefore  excla- 
mations of  pain,*  and  complaints  of  suffering,  either  in  body  or 
mind,  resulting  either  from  sickness  or  an  injury  to  the  person,^ 


Kent  V.  Lincoln,  32  Vt.  591;  People 
V.  Williams,  .3  Parker  Cr.  (N.  Y.) 
84;  Stone  v.  Watson,  1  Ala.  Ld.  Ca9. 
236;  Caldwell  v.  Murphy,  11  X.  Y. 
410;  Fry  v.  Bennett,  3  Bosw.  (N. 
Y.)  200;  Baker  v.  Griffith,  10  id. 
140;  Lusk  v.  McDaniel,  13  Ired.  (N. 
C.)   L.  485. 

*  Cashier  v.  New  York,  X.  H.  &,  H. 
E.  Co.,  185  Mass.  543,  70  X.  E,  R. 
030. 

*  Hyatt  V.  Adams,  16  Mich.  180. 
In  this  case  exclamations  of  pain  ut- 
tered by  a  patient  were  held  to  be 
original  evidence  of  suffering  and  ad- 
missible to  show  malpractice  on  the 
part  of  a  physician,  but  not  for  the 
purpose  of  aggravating  the   damages. 

^  Howe  V.  Plainfield^  ante.  Such 
expressions  are  regarded  as  natural 
evidence,  and  are  to  be  submitted  to 
the  jury,  with  all  the  circumstances 
attendant  upon  their  expression,  to 
deternnne  whether  they  are  real  or 
feigned,  and  to  give  them  such 
weight  as  they  may  deem  them  en- 
titled to  in  view  of  all  the  attendant 
circumstances.  Gray  v.. McLaughlin, 
26  Iowa,  279;  Phillips  v.  Kelley,  29 
Ala.  028:  Johnson  v.  State,  17  id. 
018;  Looper  v.  Bell,  1  Head.  (Tenn.) 
373.  And  if  such  statements  are 
made,  after  the  action  for  damages  is 
commenced,  to  a  physician,  to  enable 
him  to  form  a  medical  opinion  as  to 
the  patient's  condition,  such  state- 
ments are  competent  as  a  part  of  the 
res  gestae;  but  the  time  when  they 
were  made  may  detract  from  their 
weight.  Barber  v.  ]\Ierriam.  11  Al- 
len (Mass.),  322;  Towle  v.  Blake,  48 
N.  H.  92;  Taylor  v.  Gr.  Trunk  R.  R. 
Co.,  id.  304.  So  it  has  been  held,  in 
an  action  against  a  physician  for  mal- 
practice, that  exclamations  of  pain 
uttered  by  a  patient  may  be  given  in 
evidence  as  a  part  of  the  res  gestae, 
for  the  purpose  of  establishing  the 
claim,  but  not  in  aggravation  of  the 
damages.  Hyatt  v.  Adams,  16  Mich. 
180.       And   indeed   it   may  be   stated 


generally  that  the  statements  of  a 
sick  or  injured  person  as  to  the  na- 
ture, symptoms,  or  extent  of  the  dis- 
ease or  injury,  are  always  admissible 
to  show  his  actual  condition  at  the 
time  when  they  are  made.  They  must 
not  relate  to  the  past  condition  of 
the  person,  but  to  his  real  condition 
at  the  time  when  the  declarations  are 
made.  Hunt  v.  People,  3  Park.  Cr. 
(N.  Y.)  509;  People  v.  Williams,  id. 
84;  Perkins  v.  Concord  R.  R.  Co., 
44  X.  H.  223;  Stone  v.  Watson,  1 
Ala.  Sel.  Cas.  230;  Baker  v.  Griffin, 
10  Bosw.  (X.  Y.  Superior  Ct.)  140; 
Caldwell  v.  Murpiiy,  11  X.  Y.  410; 
Denton  v.  State,  1  Swan  (Tenn.), 
297;  Kent  v.  Lincoln,  32  Vt.  591; 
Bacon  v.  Charlton,  7  Cush.  (Mass.) 
681;  Lush  V.  McDaniel,  13  Ired.  (X. 
C.)  485;  Earl  v.  Tupper,  45  Vt.  275; 
Spatz  v.  Lyons,  55  Barb.  (X.  Y. ) 
470;  Insurance  Company  v.  Mosley,  8 
Wall.  (U.  S.)  387.  But  it  is  held 
that  the  declarations  of  a  person 
under  such  circumstances  as  to  the 
manner  in  which  it  occurred,  liow- 
ever  contemporaneous  with  the  act  it- 
self, are  not  admissible.  State  v. 
Davidson,  30  Vt.  377.  But  it  seems 
that  the  eause  of  the  injury  may  be 
proved  by  declarations  of  a  party  in- 
jured, so  nearly  allied,  as  to  the  time 
of  making  them,  with  the  injury  it- 
self, that  they  may  fairly  be  regarded 
as  a  part  of  tlie  res  gestae.  Stiles  v. 
Danville,  42  id.  282.  In  Quaife  v. 
Chicago  and  Xortli western  Railway 
Co.,  48  Wis.  513,  it  was  held  that  in 
an  action  of  damages  for  personal 
injuries  by  negligence,  the  plaintiff 
having  at  the  defendant's  request 
submitted  to  a  physical  examination 
by  surgeons,  testimony  that,  judging 
from  the  examination,  including  what 
she  said  at  the  time,  and  her  indi- 
cations of  suffering,  the  injury  com- 
plained of  existed,  was  admissible, 
although  the  witness  swore  he  could 
discover  no  external  evidence  of  it. 
This  is  based  on  Barber   v.  Merriam, 


Sec.  134.] 


Res  Gestae. 


409 


are  treated  as  original  evidence  to  prove  the  fact  and  extent  of 


11  Allen  (Mass.),  322,  where  BiGE- 
Low,  C.  J.,  says :  "  The  opinion  of  a 
surgeon  or  physician  is  necessarily 
formed  in  part  on  the  statements  of 
his  patient,  describing  his  condition 
and  symptoms,  and  the  causes  which 
have  led  to  the  injury  or  disease 
under  which  he  appears  to  be  suffer- 
ing. This  opinion  is  clearly  compe- 
tent, as  coming  from  an  expert.  But 
it  is  obvious  that  it  would  be  unrea- 
sonable, if  not  absurd,  to  receive  the 
opinion  in  evidence,  and  at  the  same 
time  to  shut  out  the  reasons  and 
grounds  on  which  it  was  founded. 
Such  a  course  of  practice  would  take 
from  the  consideration  of  court  and 
jury  the  means  of  determining 
whether  the  judgment  was  sound,  and 
his  opinion  well  founded  and  satisfac- 
tory. .  .  .  The  party  producing 
the  witness,  and  who  relies  on  his 
opinion,  should  be  allowed  the  priv- 
ilege of  showing  that  his  testimony, 
as  an  expert,  is  the  result  of  due  in- 
quiry and  investigation  into  the  con- 
dition and  symptoms  of  the  patient, 
past  and  present.  .  ,  .  The  exist- 
ence of  many  bodily  sensations  and 
ailments  which  go  to  make  up  the 
symptoms  of  disease  or  injury  can  be 
known  only  to  the  person  who  experi- 
ences them.  It  is  the  statement  and 
description  of  these  which  enter  into 
and  form  part  of  the  facts  on  which 
the  opinion  of  an  expert  as  to  the 
conditions  of  health  or  disease  is 
founded."  And  at  p.  326  he  says: 
"  It  is  suggested  in  behalf  of  the 
defendant,  that  the  statements  in  the 
present  case  were  made  by  the  plain- 
tiflF  after  the  commencement  of  the 
action.  But  we  do  not  think  that 
for  this  reason  only  they  ought  to 
have  been  rejected.  It  was  a  circum- 
stance which  may  have  detracted 
from  the  weight  of  the  evidence  of 
the  opinion  of  the  physician,  so  frfr 
as  it  was  founded  on  these  statements. 
But  as  the  statements  were  made  to 
a  medical  man,  for  the  purpose  of  re- 
ceiving advice,  they  were  competent 
and  admissible."  The  same  doctrine 
is  held  in  Matteson  v.  N.  Y.  Cent.  R. 
R.  Co.,  35  N.  Y.  487.  The  injury  oc- 
curred on  the  7th  of  July,  and  con- 
sisted   in    concussion     of  '  the    spine. 


Declarations  made  by  the  injured  per- 
son in  the  following  October,  after 
suit  brought,  to  physicians  wliile  they 
were  examining  her  to  ascertain  her 
condition,  were  held  admissible  in 
her  behalf.  The  court  said:  "Her 
comphiints  and  representation  of 
pain  and  suffering,  together  with  ap- 
pearance and  conduct,  necessarily 
formed  the  basis  of  their  judgment." 
"  This  is  the  case  notwithstanding 
tlie  examinations  referred  to  were 
made  by  the  physicians  after  the 
suit  was  commenced,  and  with  a 
view  as  to  their  testifying  therein  as 
to  the  result  of  their  examinations. 
It  does  not  appear  that  the  patient 
knew  that  such  was  their  object,  and 
if  she  did  know  it,  the  jury  were  to 
judge  whether  her  representations 
were  false  or  her  testimony  conclu- 
sive." So,  in  Brown  v.  N.  Y.  Cent. 
R.  R.  Co.,  32  id.  597,  testimony  that 
the  injured  party  complained  "  all 
the  time  since  the  injury,"  was  held 
admissible.  To  the  same  effect  Cald- 
well V.  :Murphy,  11  id.  416,  wiiere 
the  complaints  were  made  during  ten 
or  eleven  days  after  the  injury,  and 
in  Werely  v.  Persons,  28  id".  344, 
where  they  were  made  during  two  or 
three  weeks  after  the  injury.  In 
Aveson  v.  Kincaid,  6  East,  188,  it  was 
held  that  the  complaints  and  state- 
ments of  the  injured  party  at  the 
very  time  of  the  occurrence,  not  only 
as  to  bodily  suffering,  but  as  to  the 
circumstances  of  the  occurrence,  are 
admissible  as  res  gestae.  Second, 
That  the  statements  of  the  injur.ed 
party  subsequently  and  not  substan- 
tially at  the  time  of  the  occurrence, 
as  to  the  circumstances  of  the  occur- 
rence, are  not  admissible,  whether 
made  to  a  physician  or  to  a  non-ex- 
pert. Third,  Complaints  and  state- 
ments of  the  injured  party  as  to  his 
present  physical  condition,  although 
subsequently  to'  the  occurrence  and 
indeed  after  suit  is  brought  for  the 
injuries,  are  admissible,  whether 
made  to  a  physician  or  to  one  who  is 
not  an  expert.  Lush  v.  INIcDaniel,  13 
Ired.  (X.  C.)  485;  Chapin  v.  Marl- 
borough, 9  Gray  (Mass.),  244;  Good- 
win V.  Harrison,  1  Port.  (Ala.)  80; 
Kennard  v.  Burton,  25  Me.  39;  Pen- 
ton  V.  State.  1   Swan   (Tenn.),  279. 


410 


Evidence. 


[Chap.  14 


suffering,  but  not  to  prove  the  cause  thereof,''  even  though  made 
to  a  physician/  unless  made  at  such  a  time  as  to  entitle  them  to 
be  regarded  as  a  part  of  the  res  gestae}  Thus,  a  statement  by  a 
person  injured  as  to  the  cause  of  the  injury  made  Avithin  two  min- 
utes after  his  legs  had  l)een  cut  off,  while  he  was  lying  on  the 
ground  suffering,  is  admissible  as  part  of  the  res  gestae.^  A 
statement  made  by  a  prosecutrix  in  a  complaint  for  rape,  a  very 
few  minutes  after  the  ci'ime  was  committed,  or  even  a  half  hour 


« Statements  of  a  plaintiff  made 
several  minutes  after  an  accident  on 
a  street  car  and  after  the  car  had  left 
the  scene  and  after  the  plaintiff  had 
been  carried  from  the  place  of  the  ac- 
cident across  the  street  to  the  s\ile- 
Avalk  and  the  witnesses  to  whom  the 
statements  were  made  had  traveled 
several  blocks  after  hearing  of  the 
accident,  to  the  scene,  before  said 
statements  were  made  are  not  res 
gestae.  Hot  Springs  St.  Railway  Co. 
V.  Hildreth.  72  Ark.  572.  82  S.  W.  245. 
A  statement  made  by  the  plaintiff  to 
her  mother  on  coming  home  after  a 
fall,  that  she  had  hurt  herself  by 
stepping  in  a  hole  in  ihe  sidewalk,  is 
inadmissible  as  are  also  later  state- 
ments to  the  same  effect  to  her 
mother  and  to  a  phvsician  attending 
her.  Fallon  v.  Rapid  City,  17  S.  D. 
570.  97  X.  W.   1009. 

^  Statements  by  a  party  injured  as 
to  the  cause  of  his  injury  made  some 
hours  after  the   injury  are  not   part 
of  the  res  gestae  and  not  admissible 
even   though   made   to  his   physician. 
Globe  Accident  Insurance  Co.  v.  Ger- 
isch,   163   111.   625,  45   N.   E.   563,   54 
Am.   St.   Rep.   486.     A   statement   by 
a    plaintiff    one-half    hour    after    the 
accident   to    his    physician   as   to   his 
irjuries  are  admissible  as  part  of  the 
res  gestae  on  the  theory  that  the  in- 
centive  for    a    fair    statement    to   his 
physician    so    that    he    may    properly 
treat  the  injuries  of  the  patient  is  so 
great    that   the    presumption    is    that 
he  will  not  hazard  an  untruth  to  bet- 
ter   his    financial    condition.      But    a 
statement .  made   at   that   time  as   to 
the  place  of  his  injury  is  not  subject 
to    these    considerations    and    is    not 
admissible  as  part  of  the  res  gestae 
■as  it  is  a  mere  narrative  of  the  events 
attending  the  physical  injury.  _   It  is 
not    necessary    for    the    physician    to 


know  whether  the  accident  occurred 
on  one  bridge  or  another  and  its  ad- 
missibility stops  with  the  necessity  of 
such  knowledge.  Shade's  Adm.  v. 
Covington-Cinn.  E.  R.  &  T.  &  B. 
Co.,  (Ky.  1905),  84  S.  W.  733.  Ap- 
proved in  Louisville  and  Nashville 
R.  R.  Co.  V.  Smith,  (Ky.,  1905),  84 
S.   W.  755. 

*Grav    V.    McLaughlin,     26    Iowa, 
279;   Matt«rson  v.  N.  Y.,  etc.,  R.   R. 
Co..  35  X.  Y.  487  :   Kennard   v.    Bur- 
ton,  25   Me.    39.      Such   evidence  may 
be    said    to    be    natural    evidence,    as 
distinguished  from  personal  evidence. 
Phillips   V.   Kelly,    29    Ala.    628.      In 
Ohio,  etc.,  R.  R.  Co.  v.   Hammersley, 
28  Ind.  371,  upon  the  trial  of  an  ac- 
tion  brought   by   a   father   to   recover 
for  the  death  of  his  minor  son,  caused 
by  the  negligence  of  a   railroad  com- 
pany, it  was  sought  to  introduce,  on 
behalf  of  tlie  defendants,  the  declara- 
tions  of   the   soUj   made  the   day    fol- 
lowing the  injury,  as  to  the  cause  of 
tlie   accident.     It   was  held   that  the 
evidence  was  properly  excluded.     The 
eon  could  not  admit  away  the  cause  of 
action;   nor  could  he,  without  regard 
to  the  question  of  minority,   have  re- 
leased the  company  from  any  liability 
incurred  by  it   to*  the  father.     If   he 
had   survived   the  accident,   he 'would 
have    been    a    competent    witness    to 
prove  the  facts;   but  his  previous  ad- 
missions could  only  have   been  given 
in  evidence  to  impeach  his  testimony. 
In  an  action  brought  by  the  son,  the 
statement   would  have   been    properly 
introduced   as    an    admission    against 
himself. 

•Murray  v.  Boston  &  Maine  R.  R, 
72  X.  H.  32,  54  A.  289,  291.  See  also 
International  and  Great  X'^orthern  Ry. 
Co.  V.  Anderson.  82  Tex.  516,  17  S. 
W.  1039,  27  Am.  St.  Rep.  902. 


Sec.  134.]  Res  Gestae.  411 

tliereafter,  while  the  proseciTtrix  was  lying  on  a  bench,  hurt  and 
bleeding,  is  admissible  as  part  of  the  res  gestae  apart  from  the 
rule    as    to   complaint   in    prosecutions   for    rape.^*     Where    the 
mother  and  sister  of  the  deceased  came  into  the  room  immediately 
after  he  was  shot  and  asked  him  who  did  it,  his  declarations  at 
that  time  made  in  the  presence  also  of  his  wife  are  admissible 
and  part  of  the  res  gestae  and  what  was  said  by  the  mother,  wife 
and  deceased  are  in  the  nature  of  exclamations  explanatory  of 
what  had  occurred.^^     A  declaration  made  by  a  person  injured 
to  a  witness  who  saw  the  accident  and  who  rushed  immediately 
to  his  help',  when  he  then  and  there  declared  to  them  how  he  was 
hurt,  is  part  of  the  res  gestae}'^     Where  a  plaintiff  received  a 
fracture  of  the  skull  by  falling,  his  statement,  made  immediately 
upon  entering  the  house  after  the  fall,  as  to  the  manner  and  cause 
of  the  fall,  is  admissible  as  part  of  the  res  gestae}^  but  a  statement 
bv  a  person  since  deceased  as  to  a  fall,  made  at  least  fifteen  min- 
utes after  the  fall  and  after  he  had  walked  several  hundred  feet, 
was  held  not  admissible  as  part  of  the  res  gestae}^     Practically 
all  of  the  courts  in  which  the  question  has  arisen  hold  that  state- 
ments of  present  pain  and  suffering,  made  before  suit  brought, 
by  a  patient  to  his  physician,  who  had  been  called  in  solely  for  the 
piirpose  of  examining,  advising,  and  treating  him,  may  be  given 
in  evidence  by  such  physician,  when  called  as  an  expert  witness, 
as  part  of  the  facts  upon  which  he  bases  his  opinion  as  to  the  na- 
ture and  extent  of  the  patient's  injuries  or  disease.     As  to  the 
admissibility  of  statements  of  past  pains  or  sensations,  made  by 
a  patient  to  his  physician,  there  is  a  decided  conflict  in  the  rulings 
of  the  courts,  some  holding  that  such  statements  are  inadmissible, 
while  others  hold  that  it  is  admissible  for  the  physician  to  testify 
to  them  when  giving  his  opinion  as  an  expert  to  the  jury.     The 

"Castillo  V.  State,  31  Texas  Crim.  Co.  of  California,  20.3  Penn.   129-131, 

Rep    145,   19   S.  W.   892,  37   Am.   St.  51   A.   366.     "There  is  no  sound   rea- 

Eep.  794':   Contra,  People  y.   Graham,  son  for  making  any  exception  in  cases 

21    Cal.   261.  of  this  character  to  the  rule  which  ex- 

"Sut'cliiYe'v.   Iowa  Travelling  Men's  eludes   hearsay  testimony."     The  one 

Association.  119  Iowa,  220,  93  N.  W.  exception     is     found     in     involuntary 

90-    State  v.   Arnold.  47    S.   C.   9,  24  exclamations      of      pain,      convulsive 

S    E   926,  58  Am.  State  Rep.  867.  movements  of  the  body,  flinching  and 

"  Williams  v.  Soutliern  Railway,  68  screaming  when  a  particular  portion 

S    C    89    369   47  S.  E.  706.  of  the  body  is  pressed  or  touched  or 

' "  Rothrock'  v.   City   of   Cedar   Rap-  other      physical      manifestations      ol 

ids   (Iowa,  1905).  103  N.  W.  475.  bodily     suffering,     is     the     rule     in 

"Keefer  v.   Pacific   Mut.   Life    Ins,  Georgia. 


412  Evidence.  [Chap.  14 

weight  of  authority,  however,  seems  to  be  that  statements  or  nar- 
ratives of  past  pains  and  symptoms  made  by  a  patient  to  his  phy- 
sician are  inadmissible.  Some  of  the  courts,  impressed  with  the 
danger  of  opening  the  door  of  evidence  for  the  admission  of  hear- 
say testimony,  particularly  in  cases  in  which  the  hearsay  state- 
ment may  be  of  self-serving  nature,  hold  that  statements  of  the 
above  character,  even  when  made  by  a  patient  to  his  physician, 
are  not  admissible  if  made  after  suit  brought  by  the  patient  for 
his  injuries.  Others  hold  that  they  are  not  admissible  if  made  to 
a  physician,  or  surgeon  called  for  the  sole  purpose  of  qualifying 
himself  to  testify,  as  an  expert,  in  behalf  of  the  plaintiff  in  an 
action  for  damages.  A  few  recognize  no  such  distinction,  but 
hold  that  the  fact  that  the  statements  were  made  under  such  cir- 
cumstances does  not  render  them  inadmissible,  but  is  merely  a 
circumstance  to  be  taken  into  consideration  by  the  jury  in  weigh- 
ing the  effect  of  such  statements  and  the  opinion  of  the  expert 
based  in  part  thereon.^" 

As  a  matter  of  course,  such  representations  made  to  a  physician 
in  attendance  upon  him  are  entitled  to  greater  weight  than  those 
made  to  others,  because  he  is  better  able  to  judge  of  their  truth. ^® 

"  Atlanta  K.  &  N.  Ry.  Co.  v.  Gard-  statement  by  a   party   of  his   bodily 

ner,    122   Ga.   82,   49   S.   E.   818,   824.  and     nervous    symptoms     made     long 

In  Illinois  statements  of  a  plain-  after  the  accident  to  which  he  at- 
tiff  to  a  physician  as  to  his  injury  are  tributes  them  and  for  purposes  con- 
admissible  only  when  made  during  nected  with  the  preparation  for  trial 
actual  treatment  and  in  immediate  of  a  suit  in  which  his  condition  of 
connection  therewith,  even  though  health  is  material,  and  not  made  to 
aiter  suit  brought.  Chicago  City  Ry.  a  physician  for  the  purpose  of  ob- 
Co.  V.  Bundy,  210  111.  39,  71  N.  E.  taining  advice  or  treatment  are  not 
28.  In  Wisconsin  statements  as  to  sub-  admissible  in  his  favor,  still  an  ex- 
jective  symptoms  made  to  a  physl-  pert  after  examining  him  may  give 
cian  as  a  basis,  for  his  testimony  or  such  statements  in  his  behalf  as  the 
made  both  for  the  purpose  of  treat-  reason  for  his  opinion.  Cronin  v. 
ment  and  as  a  basis  for  testimony  Fitchburg,  etc.,  Ry.  Co.,  181  Mass. 
after  action  brought,  are  inadmissi-  202,  63  X.  E.  335,  92  Am.  State  Rep. 
ble.  Kath  v.  Wisconsin  Cent.  Ry.  Co.,  408.  But  in  Illinois  when  a  physi- 
121  Wis.  503,  99  N.  W.  217.  cian  examines  a  party  injured  some 
In  Michigan  declarations  of  pres-  three  years  after  an  accident,  not  for 
ent  pain  and  suffering  are  admissible  treatment  but  simply  as  preliminary 
so  long  as  they  do  not  amount  to  nar-  to  testifying  in  court  about  his  in- 
rations  of  past  conditions  unless  giv'  juries,  the  physician's  opinion  as  to 
en  after  the  injured  party  decided  lo  his  hearing  based  on  what  the  pa- 
bring  suit  to  a  physician  called,  not  tient  told  him  is  incompetent.  Chl- 
for  the  purpose  of  treatment,  but  for  cago  &  E.  I.  R.  Ca.  v.  Donworth,  203 
the  purpose  of  testifying.  McCor-  111.  192,  67  N.  E.  R.  797. 
mick  v.  Detroit  G.  H.  &  M.  R.  "Northern  Pacific  R.  v.  Urlin.  158 
Co.,  (Mich.,  1905).  104  N.  W.  U.  S.  271,  275,  15  S.  Ct.  840;  Sell- 
390.      In    Massachusetts    although    a  man  v.  Wheeler,  95   Md.  751,  54  A. 


Sees.  135,  137.] 


Ees  Gestae. 


413- 


Sec.  135.  Statements  made  by  Applicant  for  Life  Insurance. 

It  is  competent  for  a  party  insured  by  a  policy  of  life  insur- 
ance to  show  in  rebuttal  to  the  claim  of  the  insurer  that  his  state- 
ments in  his  application  were  false,  that  he  told  the  agent  for  the 
insurer  of  the  facts  in  the  case  and  followed  his  advice  in  answer- 
ing the  questions. ^^ 


Sec.  136.  Statements  made  before  the  Principal  Fact.     Intent. 

As  a  general  rule  nothing  said  or  done  before  the  principal  act 
occurred  o)'  which  u-as  within  the  contemplation  of  the  parties,  can 
be  regarded  as  a  part  of  the  res  gestae,  although  only  separated  by 
the  briefest  possible  span  of  time.  Thus,  in  an  action  against  a 
railway  company  for  injuries  to  the  person,  declarations  made  by 
the  conductor  of  the  train,  to  a  passenger,  a  moment  before  the 
accident,  as  to  the  bad  condition  of  the  road  and  the  number  of 
times  his  train  had  run  off  the  track  upon  consecutive  trips  next 
preceding  the  one  in  question,  was  held  not  admissible  in  proof  of 
negligence,  either  as  res  gestae  or  an  admission  by  the  company.^ 
The  admission  of  such  declarations  made  before  the  act,  would, 
except  in  exceptional  cases,  be  entirely  contrary  to  the  funda- 


512;  Gray  v.  Young,  4  McCord  (S.C.) 
31;  Aveson  v.  Kinnaird,  6  East,  188; 
Gilchrist  v.  Bale,  8  Watts  (Penn.) 
355. 

"  Marston  v.  Kennebec  Mut.  Life 
Insurance  Co.,  89  Maine  266.  36  A. 
389,  56  Am.  St.  Rep.  412.  See  also 
Miller  v.  Phoenix  Insurance  Co.,  107 
N.  Y.  292,  Continental  Insurance  Co. 
V.  Chamberlain,  132  U.  S.  304,  Sus- 
quehanna Insurance  Co.  v.  Cusick, 
109  Penn.  State  157.  North  Ameri- 
can Insurance  Co.  v.  Throop,  22 
Mich.  146,  7  Am.  St.  Rep.  038.  Pat- 
ten V.  INIerchants  Insurance  Co.,  40 
N.  H.  375,  380 ;  Contra,  Batchelder  v. 
Queen  Insurance  Co.,  135  Mass.  449. 
Franklin  Insurance  Co.  v.  Martin,  40 
X.  J.  Law  568,  29  Am.  Rep.  271. 

The  doctrine  of  res  gestae  in  Eng- 
land has  been  carried  so  far  as  to 
hold  that  in  an  action  by  a  husband 
upon  a  policy  of  insurance  on  the 
life  of  his  wife,  where  the  question 
related  to  the  state  of  her  health  at 
the  time  when  the  policy  was  ef- 
fected, a   witness   for   the   defendants 


was  allowed  to  state  the  result  of  a 
conversation  she  had  had  with  the  de- 
ceased, shortly  after  the  surgeon  who 
was  consulted  in  effecting  the  insur- 
ance had  given  a  certificate  of  her 
health,  in  which  conversation  the  de- 
ceased had  expressed  an  apprehension 
that  she  should  only  live  a  few  days, 
and  had  added  that  she  had  not  been 
well  from  a  time  preceding  her  be- 
ing examined  by  tliQ  surgeon.  The 
court  held  that  the  conversation  wa^^ 
admissible,  notwithstanding  the  gen- 
eral rule  which  excludes  the  declara- 
tion of  a  wife  as  against  her  hus- 
band; and  the  more  especially  so,  as 
the  surgeon  had  been  first  called  by 
the  plaintiff,  and  had  admitted  that 
he  had  formed  his  opinion  respecting 
her  health  principally  from  the  sat- 
isfactory answers  she  had  given  to 
his  inquiries.  Averson  v.  Lord  Kin- 
naird, 0  East  188. 

'Mobile,  etc..  R.  R.  Co.  v.  Ash- 
raft,  48  Ala.  15.  See  also  Greenfield 
V.  People,  85  X.  Y.  75;  39  Am.  Rep. 
636. 


414 


Evidence. 


[Chap.  14 


mental  principle  upon  which  the  doctrine  relating  to  res  gestae 
is  based,  that  it  explains  and  un-folds  the  pincipal  acts  hy  the 
undesigned  acts  or  declarations  of  the  parties,  or  others  who  par- 
ticipated in  the  act  either  as  actual  participants  or  as  ivitnesses 
thereof,  because  it  would  hardly  be  said  that  what  a  person  said 
or  did  before  the  principal  act  was  contemplated,^  could  afford 
any  light  either  upon  the  motives  of  the  parties,  or  Avhat  they  did. 
But  when<the  principal  act  is  once  in  contemplation  by  the  parties, 
their  acts  and  sayings  relating  thereto,  and,  which  tend  to  explain 
or  unfold  the  principal  act,  from  that  time  until  the  act  is  com- 
plete, are  held  to  come  under  this  head.^ 


^'But  see  State  v.  Thomas,  30  La. 
An.  600,  where  declarations  of  the 
accused,  made  before,  the  alleged 
larceny,  that  the  property  was  his 
own,  were  held  admissible  on  his  be- 
half as  part  of  the  res  gestae.  See 
also  Davis  v.  Zimmerman,  40  Mich. 
24,  where  it  was  held  that  such  dec- 
larations relating  to  the  title  of  prop- 
erty were,  in  some  cases,  admissible 
as  a  part  of  the  res  gestae,  because 
they  tend  to  explain  the  acts  of  the 
party  relating  thereto.  See  also 
Hayiies  v.  Lippey,  40  Mich.  602.  In 
a  Georgia  case,  where  a  quarrel  com- 
menced at  one  groggery  and  termin- 
ated in  a  homicide  at  another,  during 
the  same  night,  in  the  same  village, 
it  was  held  that  all  that  transpired 
at  both  groggeries  was  admissible  as 
res  gestae,  though  some  interval  of 
time  may  have  intervened  between 
the  beginning  and  end  of  the  en- 
counter. Stiles  V.  State,  .57  Ga.  783. 
^  Where  the  negotiation  for  the  pur- 
chase of  a  boiler  was  adjourned  from 
the  morning  to  the  evening,  resulting 
in  a  sale  and  warranty,  evidence  was 
held  to  be  admissible,  of  statements 
made  by  the  seller  in  the  morning  in- 
terview, pertinent  to  a  warranty  of 
its  quality  and  condition.  Cunning- 
ham V.  Parks,  97  Mass.  172. 

In  a  claim  case,  the  claimant  set 
up  a  deed  from  the  defendant  in  exe- 
cution, which  was  claimed  to  be 
naudulane.  -A  memorandum  contain- 
ing declarations  of  said  defendant, 
made  iu  the  course  of  giving  instruc- 
tions for  preparing  the  deed  the  day 
before  its  execution,  to  a  scrivener, 
who  was  also  agent  of  the  claimant. 


who  was  absent,  it  was  held  admissi- 
ble in  evidence  as  part  of  the  res 
gestae.  Pearson  v.  Forsyth,  61  Ga. 
537. 

In  Eobinson  v.  State,  57  Md.  14 
(Miller  and  Irvixg,  J.J.,  dissenting), 
upon  a  trial  for  abducting  several 
young  children  of  A.,  it  appeared 
that  the  accused  went  to  A.'s  house 
during  his  absence,  and  drove  away  a 
wagon  in  which  was  A.'s  wife,  chil- 
dren and  furniture.  The  evidence  for 
the  prosecution  tended  to  show  that 
the  wife  and  children  went  with  the 
accused  through  fear  of  violence  in- 
duced by  his  threats.  For  the  de- 
fense, the  testimony  of  the  occupant 
of  a  house  at  which  the  party  stopped 
over  night  was  offered  to  show  that 
the  wife  said  that  she  left  home  vol- 
untarily, taking  the  children  and  fur- 
niture with  her,  and  herself  getting 
the  defendant  to  drive  the  wagon,  and 
that  she  was  not  going  to  live  longer 
with  her  husband.  It  was  held  that 
this   evidence  was  admissible. 

In  suit  for  damages  for  assault  and 
battery,  evidence  of  what  the  parties 
said  during  the  altercation  which  was 
followed  by  the  assault  is  admissible. 
All  the  words  and  acts  of  the  par- 
ties, and  not  detached  words  and  sen- 
tences, should  go  to  the  jury.  .So, 
also,  declarations  of  a  bystander  made 
during  the  progress  of  such  alterca- 
tion, if  necessary  to  a  full  under- 
standing of  the  character  of  the  act 
complained  of.  Baker  v.  Guisin,  76 
Ind.  316. 

In  an  action  for  the  conversion  of 
personal  property,  the  defense  was, 
that  the    plaintiff's   claim   was   based 


Sec.  136.]  Ees  Gestae.  415 

On  the  issue  of  the  manner  of  death  of  a  party  a  letter  written 
by  him  immediately  before  his  death,  indicating  his  intention  to 
connnit  suicide,  is  admissible  as  part  of  the  res  gestae^  Where 
the  question  in  issue  is  whether  the  plaintiff  was  hired  by  the 
defendant  for  an  indefinite  period  or  for  one  year,  a  letter  written 
by  the  defendant  the  day  before  the  hiring  and  received  by  the 
plaintiff  the  day  after  the  hiring,  in  which  the  defendant  requests 
an  aiDpointment  for  the  purjjose  of  securing  his  services  "for  the 
coming  year,"  is  admissible  as  part  of  the  res  gestae.  It  was  in 
effect  a  declaration  made  contemporaneously  with  and  explana- 
tory of  the  act  of  hiring.^  Thus,  in  a  Vermont  case,^  where  the 
respondent  was  indicted  for  abortion  committed  upon  one  Olive 
Ash,  from  the  effects  of  which  she  di$d,  it  appeared  from  the  tes- 
timony of  her  sister,  who  left  her  home  and  went  to  the  respond- 
ent's house  with  her,  that  she  supposed  her  sister  to  be  pregnant 
and  that  they,  her  sister,  "left  Sutton  to  get  an  abortion  procured, 
as  was  understood  between  us  at  the  time  we  left/'  It  ajDpeared 
from  her  testimony  that  at  the  time  when  they  started  out  upon 
this  mission,  they  had  not  decided  ivJiere  to  go,  and  that  they  did 
in  fact  go  to  the  respondent's.  These  declarations  were  held  ad- 
missible as  a  part  of  the  res  gestae,  the  court  saying:  "The  mere 
act  of  going  was  equivocal ;  it  might  have  been  for  professional 
advice  and  assistance.  The  declarations  were  of  the  same  force 
as  the  act  of  going,  and  were  admissible  as  a  part  of  the  act/'^ 

on    a    judoinent    confessed    by   J.    for  with    him.      It    was    held    that    such 

the  purpose  of   fraud.     On   the  trial.  statements,    both    oral    and    written, 

evidence  was  admitted  of  J.'s  declara-  were  admissible   as   explanations   and 

tions   before   sale,    while   on    his   way  preparations  of  the  act  of  goint^  from 

to  see  one  with  whom   he  had   made  home.     The  court  said:  "Now  f  think 

arrangements  that  he  should  buy  the  I  may  safely  say  that  there  are  few 

property.     Held  that  the  declarations  problems  involved  in  the  law  of  evi- 

were  admissible,  being  a  part  of  the  dence  more  unsolved  than  what  things 

fraudulent     transaction.        Davis     v.  are    to   be    embraced    in    these   occm-- 

Drew,   58   Cal.    1.52.      .  ,  rences  that  are  designated  in  the  law 

*  Rogers   v.    Manhattan   Life   Insur-  as  res  gestae.     The  adjudications  on 

ance  Co.,  138  Cal.  285,  71  Pac.  348.  the  subject,   more  especially  tliose   in 

=*  Hincheliffe    v.    Koontz,    121    Ind.  this  counutry,  are   perplexingly  vari- 

422.   23   X.  E.  271,    16  Am.   St.   Eep.  ant    and    discordant.      I    can"  readily 

403.  find  judicial  rulings  by  force  of  which 

"  In   Hunter   v.    State,   40   N.   J.   L.  this  testimony  would  be  excluded :  but 

495,    a    man,    afterwards    murdered,  I    can    as    readily   find    other    rulino's. 

made    statements     to     his     son,     and  of  equal  weight  that  would   sanction 

wrote  a  note  to  his  wife  a  few  hours  its  admission"     This  result  has  o-rown 

before  leaving  home   on   the  night  of  out  of  the  difficulty  of  applying^  with 

the  murder,  to  the  effect  that  he  was  anything  like  precision,  general'  rules 

going  to  the  city  of  Camden  on  busi-  to  a  class  of  cases  of  infi'nite  variety, 

ness,  and  that  the  prisoner  was  going  In  the  well-considered  case  of  Lund  v." 


416 


EVIDE]S"CE. 


[Chap.  14 


So  declarations  of  a  pauper  as  to  Lis  intention  in  moving  are  ad- 


Tyngsburgh,  9  Cush.    (Mass.)    42,  it 
is  said:     'The  res  gestae  are  different 
in  different  cases;   and  it  is,  perhaps, 
not   possible  to   frame   any  definition 
which  would  embrace  all  the  various 
cases  which  may  arise  in  practice.  _  It 
is  for  the  judicial  mind  to  determine, 
upon  such  principles  and  tests  as  are 
established   by    the    law   of    evidence, 
what  facts  and  circumstances  in  par- 
ticular cases  come  within  the  import 
of  the  term.'     In  the  present  instance 
the  test  thus  indicated  will  be  found, 
I  think,  in  the  rule  that  such  declara- 
tions as  these  are  admissible,  because 
they  are  so  connected  with  an  act.  it- 
self admissible   as  a  part  of  the   res 
gastae,  as  to  have  become  incorporat- 
ed with  it.     The  declaration  and  the 
act   must   make    up    one    transaction. 
The  theory  jus'tifying  this  course  is, 
that  when  such  declarations  are  thus 
coupled  with  a  provable  act,  they  re- 
ceive   confirmation    from    it;    but    if 
they  stand  alone,  without  such  sup- 
port, they  depend  altogether  for  their 
credence     on     the     veracity     of     the 
utterer,    and    thus    conditioned    they 
are   pure    hearsay,    and    inadmissible. 
Alluding    to    the    rule    that    excludes 
hearsay,   Mr.    Sparkie,   vol.    1,   p.    65, 
says:     'The  principle  does  not  extend 
to  the  exclusion  of  any  of  what  may 
be  termed   real  or  natural  facts  and 
circumstances   in   any  way   connected 
with  the  transaction,  and  from  which 
any  inference  as  to  the  truth  of  the 
disputed     fact      can      reasonably     be 
made.'     Tlie  present  point  of  inquiry 
therefore    is,    whether    these    declara- 
tions     of     Mr.     Armstrong     to     his 
son      and     his     similar      declaration 
contained    in    the   note    to    his    wife, 
can    reasonably    be   said    to    be    com- 
ponent    parts,     or     the     natural     in- 
cidents of  the  act  of  the  deceased  in 
going  to  Camden,  which  act  was   in- 
contestably  a  part  of  the  res  gestae. 
After    mature   reflection    and   a   care- 
ful   examination    of    the    authorities, 
my    conclusion    is,    that    these    com- 
munications of  the  deceased  should  be 
regarded     as     constituents     of     that 
transaction,    for    I    think    they    were 
preparations  for  it,  and  thus  were  na- 
turally connected  with  it.     In  the  or- 
dinary  course  of    things   it   was   the 


usual  information  that  a  man  about 
leaving  home  would  communicate  for 
the  convenience  of  his  family,  the  in- 
formation of  his  friends  or  the  regu- 
lation of  his  business.     At  the  time  it 
was  given,  such  declaration  could,  in 
the  nature  of  things,  mean  harm  to 
no    one;    he    who    uttered    them    was 
bent  on  no  expedition  of  mischief  or 
wrong,  and  the  attitude  of  affairs  at 
the   time   entirely    explodes    the    idea 
that  such  utterances  were  intended  to 
serve  any  purpose  but  that  for  which 
they  were  obviously  designed.    If  it  be 
said  that  such  notice  of  an  intention 
of  leaving  home  could  have  been  given 
without  introducing  in  it  the  name  of 
Mr.    Hunter,    the    obvious    answer   to 
the    suggestion    I    tliink    is,    that    a 
reference  to  the  companion  who  is  to 
accompany   the    person    leaving   is   as 
natural  a  part  of  the  transaction  as 
is    any   other    incident   or   quality   oi 
it.     If  it  is   legitimate  to  show  by  a 
man's   own   declarations   that   he   left 
his  home  to  be  gone  a  week,  or  for  a 
certain   destination,   which    seems   in- 
contestable,    why     may     it    n  ot     be 
proved  in  the  same  way  that  a  des- 
ignated person  was  to  bear  him  com- 
pany?    At  the  time  the  words  were 
uttered  or  written   they  imported  no 
wrong-doing  to  any  one,  and  the  ref- 
erence to  the  companion  who  was  to 
go   with    him   was    nothing   more,    as 
matters   then   stood,    than   an   indica- 
tion of  an  additional  circumstance  of 
his  going.     If  it  was  in  the  ordinary 
train  of  events  for  this  man  to  leave 
word,  or  to  state  where  he  was  going, 
it  seems  to  me  it  was  equally  so  for 
him  to  say  with  whom  he  was  going. 
I    am   unable   to   see   that  the    refer- 
ence made  to  Mr.  Hunter  by  the  de- 
ceased  was    not   as   closely   combined 
with  the  probable  act  of  his  going  to 
Camden   as  were   the   inquiries   made 
by    Parkman    as    he    passed    through 
the    streets    of    Cambridge,     for    the 
house  of   Dr.    Webster,  and   those  in- 
quiries were  admitted  as  evidence  by 
Chief  Justice  Shaw.     Report  of  Web- 
ster's  case.      It   is   true   that   in  that 
instance  the  inquiries  happened  to  be 
precisely    contemporaneous    with    the 
act  being  done;   but   all  the  authori- 
ties admit  that  it  would  be  absurd  to 


Sec.  130.] 


Res  Gestae. 


417 


asible  only  when  made  accompanying  and  explaining  the  act  of 


nii&s 

require  exact  coincidence  in   iToint  of 
time  between  the  doing  of  the  act  and 
saying   of   the   words   explanatory   of 
it."    Thus,   in  the   case   already   cited 
from  9  Cush.,  it  is  said:   '  So  declara- 
tions,  to  be  admissible,  must  be  con- 
temporaneous with  the  main   fact  or 
transaction:   but    it    is    impracticable 
to  fix  by  any  general  rule  any  exact 
instant  of  time,  so  as  to  preclude  de- 
bate or  conflict  of  opinion  in  regard 
to  this   particular   point.     Lord  Den- 
WAN  is  quite  strong  in  his  expressions 
on     this    subject,    for     in    Rouch    v. 
Great  Western  R.  R.  Co.,  1  Q.  B.  60, 
he  uses  this  language:   'The  principle 
of  admission  is,  that  the  declarations 
are  pars  rei  gestae,  and  therefore   it 
has  been  contended  that  they  must  be 
contemporaneous   with   it;      but   this 
has  been  decided  not  to  be  necessary 
on  good  grounds,  for  the  nature  and 
strength   of   the   connection   with   the 
act    are    the    material    things    to    be 
looked   to,   and   although   concurrence 
of    time    cannot    but    be    always    ma- 
terial   evidence    to   show    the    connec- 
tion, yet  it  is  by  no  means  essential.' 
In   the  case  now  under  consideration 
these    declarations    are    so    naturally, 
and     therefore     strongly,     associated 
with   the  act   in   contemplation,   that 
in  my  estimation  the  most  exact  con- 
temporaneousness  of   the   two   things 
would  give  no  additional  force  to  the 
connection   between  them.       There  is 
nothing   in   the    case   to   countenance 
the   notion   that   any   change   of   pur- 
pose occurred  between  the  time  of  the 
expression   of    such   purpose    and   the 
execution  of  it,  so  a.s  there  is  no  ex- 
traneous  interference,    the    disclosure 
of  the  intenti.on  and  its  performance 
may  be  said  to  l>e,  within  the  mean> 
ing    of     the    authorities,    one    entire 
transaction.     It    is    principally    from 
the    foregoing    considerations    that    1 
find  myself  constrained  to  think  tliat 
the     declarations     under     discussion, 
even  if  they  stood  in  the  case  unsup- 
ported or  unaffected  by  other  circum- 
stances,  were   admissible,   on   general 
principles,  on  the  single  ground  that 
they     were    natural     and     inartificial 
concomitants  of  a  probable  act,  which 
itself  was  a    part   of   the   res  gestae. 
In   such   a   status    of   the    evidence   I 

27 


should  think  that  the  exception  to 
the  principle  that  rules  out  hearsay 
had  been  carried  to  its  extreme  limit, 
but  without  transcending  such 
limit." 

In  this  case,  it  must  be  observed, 
there  was  nothing  in  the  declarations 
going  to  charge  the  prisoner  with 
any  criminal   intent   or   motive. 

In  Douglas  v.  Ciiapin,  26  Conn.  7G, 
the  plaintiff's  intestate  had  con- 
tracted to  go  to  California  and  take 
charge  of  defendant's  steamboat.  In 
an  action  on  the  contract,  it  was  held 
that  his  statement  on  leaving  San 
Francisco,  that  he  was  going  up  the 
river  to  Sacramento  to  go  on  board 
the  boat,  was  admissible,  as  part  of 
the  res  gestae,  in  proof  that  he  so 
went.  The  court  simply  said,  "  It 
was  manifestly  a  part  of  the  res 
gestae." 

In  State  v.  Dula,  Phillips  (N.  C), 
211,  the  deceased  was  met  a  few 
miles  from  the  place  wdiere  she  was 
murdered,  going  on  horseback  in 
that  direction.  It  was  held  that 
her  declarations  then  and  there  that 
she  was  going  to  that  place  to  meet 
the  prisoner  were  inadmissible  in 
evidence.  The  court  said  these  dec- 
larations may  have  been  true  or  may 
have  been  false,  but  were  not  veri- 
fied by  the  tests  which  the  law  of 
evidence  requires,  namely,  the  sanc- 
tity of  an  oath,  and  an  opportunity 
for   cross-examination. 

In  People  v.  Williams,  3  Abb.  Ct. 
App.  Dec.  (N.  Y.)  596,  on  an  indict- 
ment for  poisoning,  it  was  held  that 
evidence  that  the  deceased,  on  going 
out  of  the  house  just  before  she  was 
poisoned,  said  she  was  going  to  meet 
the  prisoner,  was  not  admissible  as 
tending  to  prove  their  meeting,  even 
in  connection  with  her  illness  on  her 
return,  and  her  attributing  it  to 
wliat  he  had  given  her  to  drink. 
The  court,  Denio,  J.,  said:  "To 
render  the  declaration  competent, 
the  act  with  which  it  is  connected 
should  be  pertinent  to  the  issue;  for 
where  tlije  act  is  in  its  own  nature 
irrelevant,  and  when  the  declara- 
tion is  per  se  incompetent,  the  union 
of  the  two  will  not  remler  the  dec- 
laration    adniissibi'v'.        The     nir.tciial 


418 


Evidence. 


[Chap.  14 


moving, 


^     On'  the  issue  of  title  to  certain  goods  evidence  is  ad- 


fact  here  was,  that  the  prisoner  and 
the      deceased      weie      tof,'ether      on 
Saturday   night.     Even   this  was   not 
a   principal   fact,  but   only  a   circum- 
stance to  show  that  the  prisoner  had 
an  opportunity  to  commit  the  offense. 
That   the   deceased   left  the   house   in 
Duane    street    at    a    particular    time 
was  of  no  materiality   unless   it  was 
also   shown   that    during  her    absence 
she    met    the    defendant.        The    act 
itself   was    indifferent    to    the    issue, 
whatever  the  intention  with  which  it 
was   done.     If    the   deceased   met   the 
prisoner,    and    tlms    afforded    an    op- 
portunity  of   committing  the   offense, 
it     is     i'mmatrial     whether     she     ex- 
pected   or    intended    to   meet   him   or 
not;   and   so    of   course   if   she    failed 
to  meet   him,   he   could   not   properly 
be    prejudiced    by    the    circumstance 
that  she  went  out  with   a  design   to 
go    to    him.       The   evidence    was    not 
offered    to   qualify    an    act    connected 
with    the    issue,    but    to    induce    the 
jury  to  infer   another  act  not   other- 
wise shown  to  exist,  that  of  his  being 
in  company  witli  the  deceased.     Sup- 
pose a  declaration  had  been  made  by 
the  deceased,  on  the  previous  day,  of 
an  intention  to  go  to  her  husband  on 
that   particular   evening;   such    decla- 
ration,  being   unaccompanied   by   any 
act,   would  rest  whollly  in  assertion, 
and  would  be  clearly  without  the  rule 
referred   to ;   yet  the   proof   would   be 
essentially     of    the     same     character, 
and   subject   to  no  greater  objections 
than    the   evidence    we    are    consider- 
ing.    I  am  of  poinion,  therefore,  that 
the  case  was  jiot  within  the  rule  ad- 
mitting  a    declaration    accompanying 
an  act,  on  the  groimd  of  its  being  a 
part  of  the  res  gestae." 

In  Carroll  v.  State,  3  Humph. 
(Tenn.)  315,  the  declarations  of  the 
deceased  while  on  a  journey  with 
the  prisoner,  and  in  State  v.  Vincent, 
24  Iowa,  570,  his  declarations  as  to 
the  object  of  a  contemplated  journey 
which  he  afterward  took,  were  re- 
ceived in  evidence.  In  neither  case 
was  there  anything  in  the  declara- 
tions tending  to  fasten  any  criminal 
intent  on  the  prisoner. 

In  Check  v.  State,  35  Ind.  492,  a 
witness  was  allowed  to  testify  to  the 


following  declaration  by  the  de- 
ceased concerning  the  prisoner  just 
before  his  death:  "Doe,  I  am  glad 
you  have  come;  there  are  two 
ruffians  going  up  the  road,  and  they 
have  threatened  to  take  my  life; 
they  have  gone  to  my  house,  and  I 
want  you  to  go  back  with  me."  The 
court  said:  "Was  it  res  gestae?  We 
think  not.  Bouvier  says:  'When  it 
is  necessary,  in  the  course  of  a  cause, 
to  inquire  into  the  nature  of  a  par- 
ticular act,  or  the  intention  of  the 
person  who  did  the  act,  proof  of 
what  the  person  said  at  the  time  of 
doing  it  is  admissible  evidence  as  a 
part  of  the  res  gestae,  for  the  purpose 
of  showing  its  true  draracter  '  We 
think  the  books  may  be  searched 
without  success,  to  find  a  case  where 
the  statements  of  a  murdered  man, 
made  before  he  came  in  sight  or  hear- 
ing of  his  slayer,  can  be  given  in  evi- 
dence against  the  accused  on  his 
trial." 

State  V.  Dickinson,  41  Wis.  209, 
was  a  criminal  action  for  procuring 
the  death  of  a  pregnant  woman  by 
abortion.  It  was  claimed  that  the 
death  occurred  on  Saturday.  The 
witness,  Mary  Erickson,  was  permit- 
ted to  testify  as  to  conversations  had 
by  her  with  the  deceased  on  the  pre- 
vious Wednesday  and  Friday,  in 
wliich  the  deceased  stated  that  she 
understood  or  had  found  out  that 
she  was  in  a  family  way;  that  she 
had  been  to  see  the  defendant  about 
it;  had  been  or  was  going  to  de- 
fendant to  get  medicine  and  syringe; 
that  she  had  made  an  arrangement 
or  bargain  with  defendant  to  have 
an  operation  performed  upon  her; 
was  to  give  .$25,  and  was  to  return 
to  defendant's  on  Saturday  afternoon 
for  the  purpose  of  having  instru- 
ments used  to  get  rid  of  the  child. 
The  prosecution  offered  this  evi- 
dence to  show  that  the  deceased  had 
at  that  time  the  intention  of  having 
an  abortion  produced.  In  his  charge 
the  jvidge  so  restricted  the  effect  of 
the  testimony,  and  directed  the  jury 
that  all  the"^  declarations  of  the  de- 
ceased made  before  she  was  informed 
she  could  not  live,  in  which  the  d'e- 
fendant's   name  was   connected,  could 


Sec.  136.] 


Res  Gestae. 


419 


missible  as  part  of  the  res  gestae  that  before  the  purchase  the 
defendant  said  to  her  husband  that  she  was  going  to  invest  her 
money  in  goods  and  that  her  husband  was.  to  conduct  the  business 
for  her  and  that  she  gave  to  her  husband  a  list  of  certain  goods 
to  be  purchased  and  that  the  money  used  in  purchasing  the  goods 
was  from  her  father's  estate.^  Where  a  husband  is  charged  with 
making  a  fraudulent  conveyance  to  his  wife,  testimony  that  the 
property  was  purchased  with  his  wife's  money,  that  when  the 


only  be  considered  as  evidence  tend- 
ing to  show  that  at  that  time  the 
deceased  had  formed  the  purpose  to 
go  to  the  defendant  to  have  an  abor- 
tion produced  upon  her,  but  was  not 
evidence  that  the  defendant  actually 
produced  the  abortion  or  had  en- 
gaged to  do  it.  The  court  on  review 
said:  "  Tlie  first  inquiry  is,  whether 
the  declarations  of  deceased  to  Mary 
Erickson  were  admissible  for  the  pur- 
pose of  showing  her  intention,  and 
as  their  scope  and  effect  were  re- 
stricted by  the  court,  we  are  of  opin- 
ion that  they  were.  They  consti- 
tuted a  part  of  the  res  gestae,  were 
contemporaneous  with  the  main  fact 
under  consideration,-  and  were  so 
connected  with  it  as  to  illustrate  its 
character.  1  Greenl.  Ev.  108.  It 
was  certainly  competent  to  prove 
that  the  deceased  went  to  tlie  house 
of  the  defendant  at  the  time  it  was 
charged  in  the  information  the 
abortion  was  produced.  Upon  the 
authorities,  her  intent  or  purpose  in 
going  there  might  be  shown  by  her 
declarations  then  made  or  previously 
made,  because  such  declarations  be- 
came a  part  of  the  res  gestae.  For 
it  is  evident  the  declarations  were 
connected  with  the  act  of  her  going 
to  the  defendant,  were  expressive  of 
the  character,  motive  or  object  of  her 
conduct,  and  they  are  to  be  regarded 
'  as  verbal  acts  indicating  a  present 
purpose  or  intention,  and  therefore 
are  admitted  in  proof  like  any  other 
material  facts.'  1  Greenl.  Ev.  supra; 
Insurance  Co.  v.  Mosley,  8  Wall. 
397;  Enos  v.  Tuttle,  3  Conn.  27;  Co- 
rinth V.  Lincoln,  34  Me.  310;  Lund 
v.  Inhabitants  of  Tyngsborough,  9 
Cush.  (Mass.)  36;  Nutting  v.  Page, 
4  Gray  (Mass.),  581;  State  v.  How- 
ard, 32  Vt.  380;  Moore  v.  Meacham, 
10  N.  Y.  207 ;   People  v.  Davis,  56  id. 


96.  It  is  obvious  that  the  mere  act 
of  the  deceased  going  to  defendant's 
house  was  equivocal ;  it  might  be 
innocent  or  not;  it  might  warrant 
the  inference  that  she  went  for 
proper  treatment  of  some  ailment ; 
the  declarations  would  render  her 
motive  clear  and  intelligible.  They 
therefore  seem  to  us  as  falling  under 
the  denomination  of  the  res  gestae, 
and  were  admissible  as  original  evi- 
dence, as  distinguished  from  hearsay. 

In  People  v.  Davis,  ante,  when  the 
deceased  came  home,  in  answer  to 
inquiries  from  her  stepmother  she 
made  statements  telling  what  had 
been  done  to  her  by  Dr.  Crandall  at 
his  office,  and  how  he  did  it,  ex- 
hibiting certain  medicine  which  she 
said  the  doctor  gave  her.  and  stated 
what  he  told  her  as  to  taking  it  when 
her  pains  came  on.  The  court  held 
these  declarations  incompetent  be- 
cause they  were  mei-ely  narratives 
of  past  occurrences,  did  not  become 
a  part  of  the  thing  done  at  the  doc- 
tor's office,  and  were  therefore  no 
part  of  the  re  gestae.  But  the  court 
say :  '  Had  it  been  shown  that  the 
medicine  was  to  be  taken  to  aid  in 
producing  the  miscarriage,  what 
was  said  in  respect  to  it  would  have 
been  admissible.'  The  conclusion 
which  we  have  reached  in  view  of  all 
the  cases  upon  the  subject  is,  that  the 
declarations  of  the  deceased  made  to 
the  witness  Mary  Erickson  were  so 
connected  with  her  act  of  going  to 
the  defendant's  as  to  constitute  a 
part  of  that  act,  and  were  admissible 
as  explanatory  of  fhat  act.  See 
Eegina  v.  Edwards,  12  Cox's  Cr.  Cas. 
230." 

n^nox  V.  Montville,  98  Maine  493, 
57  A.  792. 

'Jones  V.  Chenault,  124  Ala.  610, 
27  So.  515,  82  Am.  St.  Rep.  211. 


420  Evidence.  [Chap.  14 

original  deed  to  him  was  taken  he  wanted  it  made  to  his  wife  and 
that  he  was  advised  to  take  title  for  his  wife,  is  admissi])le. 
Where  the  good  faith  of  an  act  is  in  question  evidence  of  the  intent 
with  which  it  is  done  is  admissible.® 

Only  such  declarations  are  admissible  as  part  of  the  res  gestae 
as  grow  ont  of  the  matter  in  issue,  so  Avhere  a  defendant  was  sued 
for  killing  the  plaintiff's  dog  a  statement  made  by  his  wdfe  to  him 
before  the  killing  that  the  dog  had  snapped  at  her  is  inadmissible 
as  part  of  the  res  gestae.  In  this  case  the  principal  fact  is  the 
killing  of  the  dog  and  her  antecedent  statement  cannot  be  said  to 
grow  out  of  such  fact  or  transaction.^*^  In  a  Geoi-gia  case,"  two 
persons  agreed  to  fight  a  duel,  and  then  separated  to  arm  them- 
selves for  that  purpose,  and  agreed  to  meet  again  within  an  hour. 
The  agreement  was  not  carried  out,  but  the  respondent  sought  out 
the  other  party  and  killed  him,  and  it  was  held  that  declarations 
of  the  deceased  made  iii  the  interval,  to  third  persons,  to  the  effect 
that  the  respondent  was  seeking  his  life,  were  evidence  against 
the  respondent  on  an  indictment  for  murder.^^  In  a  Tennessee 
case,^^  upon  an  indictment  for  murder,  evidence  was  admitted 
of  the  declaration  of  the  deceased,  on  the  evening  before  he  was 
missed,  that  he  was  going  to  the  Pine  mountain,  to  hunt  a  salt- 
petre cave.  The  court  said:  "It  is  part  of  the  transaction;  ex- 
plains the  reason  why  Elrod  was  in  the  Pine  mountain,  and  con- 
stitutes a  fact  in  the  case."  "This  declaration,  made,  as  it  may 
be  said,  w^hile  on  his  wxiy,  and  explaining  the  reason  of  his  going, 
constitutes  an  important  fact  to  elucidate  the  question  of  his 
death."  But  a  declaration,  "shortly  before  his  death,"  that  he 
had  been  to  the  mountain,  and  was  going  out  shortly  again,  was 
held  inadmissible.  There  was  nothing  in  the  evidence  admitted 
tending  to  charge  the  prisoner  with  the  murder,  by  tlie  mere 
statement  of  the  deceased.  In  the  same  case,  on  the  subseq:uent 
trial,^^  evidence  w^as  admitted  of  the  statement  of  the  deceased,  not 

*  McGhee  v.  Wells,  57  S.  C.  280,  35  nevertheless     sustained     by     respect- 

S.  E.  529,  76  Am.  St.  Rep.  567.  able    authorities,    and    does    not    ira- 

"Ehrlinger  v.  Douglas,  81  Wis.  59,  pugn  the  rules   and   principles   appli- 

50  N.  W.  1011.  29  Am.  St.  Rep.  863.  cable  to  res  gestae. 

"State  V.  Cox,  64  Ga.  374,  37  Am.  '' Kirby  v.   State,   7   Yerg.    (Tenn.) 

Rep.  76.  259. 

^'Warneb,  C.  J.,  dissented,  but  we  "  Kirby  v.   State.   9  Yerg.    (Tenn.) 

are  inclined  to  believe  that  the   doc-  381.        In   England   such   declarations 

trine   announced   by   the   court,   while  are  held  not  to  be  a   part  of  the  res 

going    to    the    very    outer    limits,    is  gestae,  and  consequently  not  admissi- 


See.  136.]  Res  Gestae.  421 

only  that  be  was  going  to  the  Pine  mountain,  bnt  also  that  the 
prisoner  was  to  accompany  him  and  show  liim  a  saltpetre  cave. 
For  this  error  a  new  trial  was  granted.  The  court  said :  "How 
does  this  statement  constitute  any  part  of  the  thing  doing? 
Whether  Kirby  was  to  accompany  him  or  not,  could  not  affect  bis 
intentions  in  going  to  the  mountain,  nor  could  his,  statement  of 
that  fact  tend  to  explain  his  purpose  in  going  there.  His  declara- 
tion of  bis  own  purpose  is  evidence,  because  it  explains  bis  inten- 
tions, and  his  intentions  constitute  part  of  the  thing  be  Avas  do- 
ing. He  was  traveling,  and  as  he  was  going,  be  had  certain  in- 
tentions, and  as  these  intentions  could  only  be  known  by  bis  dec- 
larations of  them,  such  declaration  is  evidence.  But  it  is  im- 
possible that  Kirby's  going  with  him  could  constitute  any  part  of 
tbe  thing  which  he  was  doing,  which  was  bis  own  journey." 

On  a  trial  for  nmrder  by  poisoning,  statements  made  by  de- 
ceased in  conversation  sbortly  before  be  took  tbe  poison,  bave  been 
received  in  evidence  for  the  purpose  of  proving  the  state  of  bis 
healtJi  at  that  time  f^  and,  on  the  same  ground,  it  has  frequently 
been  held,  in  actions  or  indictments  for  assault,  that  wdiat  a  man 
bas  said  about  himself  to  his  surgeon  was  evidence  to  show  wbat 
be  suffered  by  reason  of  the  assault.^^  \\Tiere,  upon  an  indict- 
ment for  an  abortion,  tbe  fact  of  a  deceased  party  going  to  tbe  re- 
siDondent's  house  for  tbe  pairpose  of  having  him  commit  an  abortion 
was  material,  it  was  held  that  Jier  declarations  as  to  her  purpose 
in  going  there,  made  at  the  time  of  her  leaving,  were  competent 
as  a  part  of  tbe  res  gestae?^  So,  where  a  respondent  was  indicted 
for  discharging  a  gun  at  a  person  and  wounding  him,  and  the 
person  injured  was  a  witness  on  the  ti:ial,  and  it  appeared  that 
tbe  affray  took  place  on  tbe  premises  of  the  respondent,  it  was  held 
that  the  respondent  might  prove  the  declarations  of  tbe  witness, 
made  while  on  bis  way  to  tbe  place  where  tbe  affray  happened, 
tbe  witness,  upon  being  inquired  of  on  cross-examination,  having 
denied  them.  In  such  case,  evidence  might  be  proper  of  previous 
threats  made  by  tbe  witness  as  to  tbe  respondent,  and  of  previous 
affrays  between  them,  if  so  connected  witb  tbe  affray  in  question 
as  to  bave  any  tendency  to  show  that  the  respondent,  at  tbe  time, 

r^P     S"-  J-    ^^'a™ght,    13    Cox  ^^  Aveson  V.  Lord  Kinnaird,  6  East, 

OQA      I     '  ^^i-   ""■   Edwards,    12   id.      198.  per  Lawrence,  J. ;     R    v    Gutt- 

R.  V.  Johnson,  2  C.  &  Kir.  354.  "  State  v.  Howard,  32  Vt.  380."      " 


422 


Evidence.  [Ctap.  14 


had  just  cause  of  alarm,  and  to  fear  serious  injury  to  his  person" 

or  propertj.^^ 

In  actions  for  criminal  conversation,  if  it  is  material,  with  the 
view  of  increasing  or  diminishing  the  damages,  to  ascertain  upon 
what  terms  the  husband  and  wife  lived  together  before  'the  seduc- 
tion,  their  language   and   deportment   towards  each  other,  their 
correspondence  together,  and  their  conversations  and  correspond- 
ence with  third  persons,  are  original  evidence.^^     But  to  guard 
against  the  abuse  of  this  rule,  it  must  be  proved  by  some  evidence 
independent  of  the  date  api>earing  on  the  face  of  the  letters, 
that  they  were  written  by  tlie  wife  to  the  husband  prior  to  any 
suspicion  of  misconduct  on  her  part,  and  when,  consequently,  no 
grounds   existed   for   imputing  collusion.^^     It   is   not,   however, 
necessary,  in  the  absence  of  other  suspicious  circumstances,  to  ex- 
plain the  cause  of  the  husband  and  wife  living  apart  at  the  time 
•when  the  letters  were  written,  though,  of  course,  it  is  expedient 
that  such  explanation  should,  if  possible,  be  given.^^ 

Sec.  137.  Collateral  Matters  connected  with  Principal  Fact. 

I  here  are  other  declarations  and  acts,  which  are  admitted  as 
<)riginal  evidence,  being  distinguished  from  hearsay  by  their  con- 
nection with  the  principal  fact  under  investigation.  The  affairs 
of  men  consist  of  a  complication  of  circumstances,  so  intimately 
interwoven  as  to  be  hardly  separable  from  each  other.  Each 
owes  its  birth  to  some  preceding  circumstances,  and  in  its  turn  be- 
comes the  prolific  parent  of  others  ;  and  each,  during  its  existence, 
has  ins  inseparable  attributes,  and  its  kindred  facts,  materially 
affecting  its  character  and  essential  to  be  known,  in  order  to  a 
right  understanding  of  its  nature.     These  surrounding  circum- 

"  State  V.  Goodrich,    19  Vt.    116.  be  written  by  the  wife,  were  tendered 

^'  Trelawnej^    v.    Coleman,    1    B.    &  by  the  husband  to  rebut  this  charge, 

Aid.   90:   Willis  v,   Bernard,   8    Bing.  blit  were  rejected,  on  the  ground  that 

376;   Winter   v.  Wroot.   1   M.  &  Rob.  no    proof    was    given,    beyond    their 

404;      Gilchrist    v.     Bale,     8     Watts  date,    of    the    time    when    they    were 

(Penn.),  355.  sent.     See  ante,  §   110,  where  this  ex- 

-"  Trelawney   v.    Coleman,    2    Stark.  eeption    to    the    general    presumption 

193,   per   Holroyd,   J. :    Houliston    v.  respecting  dates  is  accidentally  omit- 

Smyth,  2  C.  &  P.  24,- per  Best,  C.  J.  ted. 

This    last    case    was    an    action    for  "  Edwards  v.  Crock,  4  Esp.  30 :  Tre- 

board     and     lodging    supplied    to     a  lawney  v.   Coleman,   1   B.  &  Aid.   90; 

wife,  while   living  separate   from   her  Wilton  v.  Webster,  7  C.  &  P.  198. 

husband,      in       consquence      of      his  ^-  Trelawney   v.    Coleman,    2    Stark, 

cruelty;      and   letters,    purporting   to  191. 


Sec.  137.] 


Res  Gestae, 


423 


stances  may  always  be  shown  to  the  jury  along  with  the  principal 
fact,  provided  they  constitute  parts  of  what  are  termed  the  res 
gestae;  and  whether  they  do  so  or  not  must  in  each  particular 
case  be  determined  by  the  judge  in  the  exercise  of  his  sound  dis- 
cretion, according  to  the  degree  of  relationship  which  they  bear 
to  that  fact.^  Thus,  on  the  trial  of  Lord  George  Gordon  for  trea- 
son, the  cry  of  the  mob,  who  accompanied  the  prisoner  on  his  en- 
terprise, was  received  in  evidence,  as  forming  part  of  the  res 
gestae,  and  showing  the  character  of  the  principal  fact.^  On  the 
issue  of  the  excellence  of  a  theatrical  performance  the  remarks 
of  the  audience  while  leaving  the  theatre  before  the  end  of  the 
performance  are  admissible  as  part  of  the  res  gestae  characteriz- 
ing the  act  done.^     In  a  suit  by  a  passenger  on  a  street  railway 


^  Per  Park,  J.,  in  Rawson  v.  Haigh, 
2  Bing.  104;  Ridley  v.  Gyde,  9  Bing. 
349,  352;  Pool  v.  Bridges,  4  Pick. 
(Mass.)  379;  Allen  v.  Duncan,  11 
Pick.  (Mass.)  309.  If  goods  con- 
signed by  A.  to  B.,  are  injured  by  the 
defendant  whilst  they  are  in'  the 
hands  of  the  carrier,  in  an  action  for 
the  wrong,  brought  either  by  A.  or 
B.,  according  to  the  circumstances,  it 
would  be  competent  to  either  of  them, 
being  plaintiff,  to  establish  his  right 
of  property  in  the  goods,  by  proof  of 
such  an  agreement  between  them  as 
either  left  the  right  of  property  and 
action  in  himself,  or  vested  it  in  him 
by  the  delivery  to  the  carrier.  This 
would  be,  it  is  true,  nothing  more 
than  an  agreement  between  A.  and 
B.,  to  which  the  defenndant  was  not 
privy;  but  it  would  be  evidence 
against  him,  not  as  concluding  any 
right  of  his  without  his  assent,  but 
as  affecting  the  nature  of  the  trans- 
action itself,  and  showing  to  whom 
the  injury  was  done.  1  Stark.  Ev. 
53;  Murry  v.  Bethune,  1  Wend.  (X. 
Y.)  196.  In  the  example  put,  it  may 
be  material  to  see  the  letters  which 
had  passed  between  A.  and  B.,  the 
direction  of  A.  to  his  clerks  or  to  the 
carrier,  from  which  to  infer  the 
terms  of  the  agreement  and  the  iden- 
tity and  destination  of  the  goods.  In 
a  late  case  the  plaintiff  sued  out  a 
foreign  attachment  against  B.,  sum- 
mdning  the  defendant  as  garnishee. 
The  summons  was  served  in  Novem- 
ber,  1828.     On  the  21st  of  the  previ- 


ous July  the  garnishee  had  thirty 
barrels  of  B.'s  gin  in  his  hands, 
which,  by  letter  of  that  date,  he  was 
directed  by  B.  to  hold,  with  the  pro- 
ceeds of  that  sold,  if  anv,  subject  to 
the  order  of  G.;  and,  by 'letter  of  the 
August  following,  the  garnishee  had 
acknowledged  that  he  held  the  gin 
and  proceeds  on  account  of  G.  These 
letters  were  at  first  excluded  as  not 
being  evidence  of  the  garnishee,  under 
the  notion  that  they  were  naked  dec- 
larations; but  on  appeal;  the  Su- 
preme Court  held  them  clearly  ad- 
missible, as  evidence  of  the  agreement 
by  which  the  gin  was  transferred  to 
G.  Cox  V.  Gordon,  2  Dev.  (X.  C.) 
512;  Jones  v.  M'Neil,  2  Bail.  (S.  C.) 
471.  On  the  other  hand,  the  holder 
of  a  check  went  into  the  bank,  and 
when  he  came  out,  said  he  had  de- 
manded its  payment.  This  declara- 
tion was  held  inadmissible  to  prove  a 
demand,  as  being  no  part  of  the  res 
gestae.  The  demand  was  the  fact  to 
be  proved.  Brown  v.  Lusk,  4  Yerw. 
(Tenn.)    210.  ° 

It  is  difficult  to  lay  down  any  pre- 
cise general  rule  as 'to  the  cases  in 
which  declarations  are  admissible  as 
part  of  the  res  gestae,  and  the  only 
way  of  useful  instruction  is  to  pre- 
sent the  cases  that  have  arisen  under 
this  head  and  judge  of  the  applica- 
tion of  the  rules  from  these  experi- 
mental tests. 

=  21  How.  St.  Tr.  514,  529. 

'Charley  v.  Potthoff,  US  Wis    258 
95  X.  W.  124. 


424  Evidence.  [Chap.  14 

car  for  being  ejected  from  the  car,  testimony  that  during  his  col- 
loquy with  the  conductor  and  while  he  -was  being  jDut  off  his  little 
girl  and  little  boy  with  him  were  both  crying  and  that  he  'bought 
the  little  girl  would  go  into  spasms"  was  admissible  as  part  of  the 
res  gestae.'^  In  an  action  for  the  death  of  an  engineer  employed 
by  a  railroad  company,  through  the  giving  way  of  the  bridge, 
evidence  that  a  bystander  watching  the  deceased  attempting  to 
take  his  engine  across  the  bridge  said  at  one  t'ime,  "Jake  is  safe," 
is  competent  evidence  as  part  of  the  res  gestae,  going  to  show  the 
dangerous  condition  of  the  bridge  and  the  peril  of  crossing  and 
the  effect  the  effort  to  cross  had  on  the  bystanders.^  On  the  issue 
of  the  prudence  of  a  passenger  in  jumping  off  a  car  when  an  acci' 
dent  seemed  impending,  it  is  proper  to  consider  what  the  action 
of  the  other  passengers  was  as  part  of  the  res  gestae,^  In  an  ac- 
tion against  a  railroad  for  failure  to  protect  the  plaintiff,  a  pas- 
senger, from  a  mob,  a  witness  may  testify  to  what  he  said  to  the 
plaintiff  during  the  disturbance,  exclamations  by  third  parties 
at  the  time  being  part  of  the  res  gestae? 

But  where  a  brakeman  was  injured  through  the  uncoupling  of  a 
train,  in  an  action  for  the  injury  he  may  not  testify  that  immedi- 
ately after  the  accident,  while  he  was  binding  up  his  wound,  a 
bystander,  since  deceased,  told  him  the  train  was  parted  when  it 
passed  him.^  A  remark  made  by  a  bystander  when  the  plaintiff 
fell  off  a  car,  ''if  you  had  stopped  and  let  her  off  this  would  not 
have  occurred,"  to  which  remark  the  conductor  made  no  reply, 
is  not  admissible  as  part  of  the  res  gestae.  The  test  seems  to  be 
that  to  render  the  utterance  or  declaration  of  another  admissible 
it  must  flow  from  one  of  the  actors  or  from  one  sustaining  some 
relation  to  the  transaction  and  be  so  intimately  connected  with 
the  litigated  act  as  to  be  the  act  speaking  of  itself  through  the 
witness.®  In  Louisiana  it  is  said  that  exclamations  by  third  per- 
sons present  at  a  shooting  affray  are  not  admissible  as  part  of  the 
res  gestae  to  show  that  the  act  was  not  done  by  the  accused,  but  by 

*■  O'Roiirke    v.    Street    Railway    Co.,  '  Seawell  v.   Carolina  Central   Rail- 

103  Tenn.  124.  52  S.  W.  872,  76  Am.  way  Co.,  133  N.  C.  515,  45  S.  E.  850. 

St    Rep    179.  '  Bumgardner  v.   Southern  Ry.   Co., 

-^Harrill      v.      South      Carolina      &  133  X.  C.  784.  43  S.  E.  948. 

GTeorgia,  etc.,  Ry.  Co.,  135  N.  C.  601,  "Indianapolis    St.    Ry.   Co.   v.   Tay- 

44  S.  E.   109.  lor    (Ind.,   1905),   72   N.   E.    1045.  • 

"  Chretien  v.  New  Orleans  Rys.  Co., 
113  La.  761,  37  So.  716. 


Sec.  137.] 


Res  Gestae. 


425 


others.  The  court  held  such  evidence  to  be  mere  hear- 
say. The  court  distinguishes  the  Lord  George  Gordon  case 
where  tlie  cries  of  the  mob  were  introduced  in  evidence  on  the 
ground  that  this  evidence  was  necessary  to  show  the  character  of 
the  mob  with  Gordon,  as  he  was  charged  with  treason.^'^  In  an 
action  for  injury  to  a  horse  by  an  escape  of  electricity  from  a 
street  railway  track,  a  statement  of  the  driver  to  his  companion 
when  the  horse  stopped  on  the  track,  ''He  has  got  a  shock,  Sam, 
catch  hold,"  is  admissible  as  part  of  the  res  gestae}^     So,  upon 


Instate  V.  Bellard,  50  La.  Ann. 
594,  23  So.  504,  09  Am.  St.  Rep.  461. 

"  Trenton  Passenger  Kailway  Co. 
V.  Cooper,  GO  N.  J.  Law,  219,  37  A. 
730,  G4  Am.  St.  Rep.  592. 

At  the  trial  of  a  husband's  libel  for 
divorce  on  the  ground  of  adultery, 
E.  testified  to  seeing  the  libelee  sit- 
ting in  R.'s  lap.  R.'s  wife  testified 
that  she  requested  her  husband  to 
hold  the  libelee  in  his  lap,  she  be- 
ing ill  at  the  time,  while  the  bed  was 
making.  R.'s  wife  testified  that  she 
left  the  room  for  a  few  minutes  while 
her  husband  was  holding  the  libelee, 
and  when  she  returned  he  told  her 
that  L.  had  been  in.  R.  testified  to 
the  occurrence  substantially  as  stated 
by  his  wife,  adding  that  E.  came  in 
while  his  wife  was  absent,  and  that 
he  mentioned  the  fact  to  her  when 
she  came  back.  Jt  was  held  that  the 
statement  of  R.  to  his  wife  was  com- 
petent as  in  the  nature  of  a  verbal 
act  identifying  the  occasion  as  the 
same  testified  to  by  E.  Earle  v. 
Earle,  11  Allen  (Mass.),  1.  In  an 
action  against  a  surgeon,  for  negli- 
gently treating  a  fractured  thigh 
bone,  the  defendant,  in  support  of  his 
allegation  that  he  had  placed  the  frac- 
tured limb  upon  a  double-inclined 
plane,  at  an  angle  of  forty-five  de- 
grees, or  thereabouts,  introduced  a 
witness  who  testified  to  statements 
made  in  the  presence  of  the  plaintiff, 
by  the  defendant  to  the  witness,  at 
the  time  when  the  defendant  brought 
the  mach-ine  to  the  plaintiff's  house, 
about  the  principle  upon  which  the 
machine  operated,  and  liow  \t  might 
be  made  a  double-inclined  plane  of 
any  angle,  by  means  of  a  screw.  The 
evidence  was  admitted,  and  on  excep- 
tions,   the    court    held    that,    both    as 


res  gestae  and  as  a  statement  made 
in  presence  of  the  party,  they  could 
not  say  that  it  was  erroneously  ad- 
mitted. Moody  V.  Sabin,  9  Cush. 
(Mass.)    505. 

An  officer,  called  as  a  witness  for 
the  commonwealth  in  a  criminal  case, 
was  asked  what  he  did  in  consequence 
of  what  was  told  him  as  to  the  com- 
mission of  the  offense,  and  answered 
that  he  started  to  look  for  the  de- 
fendant ;  and  the  presiding  judge  ad- 
mitted the  answer  in  evidence.  It 
was  held,  that  the  defendant  had  no 
ground  of  exception.  Commonwealth 
V.  ]\Ioulton,   4  Gray    (Mass.),  39. 

The  plaintiff'  cued  the  defendant 
for  entering  upon  his  land  and  dig- 
ing  a  ditch  there.  The  defendant 
justified  on  the  ground  that  he  only 
cleared  out  an  ancient  ditch  as  he 
had  a  right  to  do,  to  drain  his  own 
land  above  the  plaintiff's.  The  plain- 
tiff formerly  owned  the  defendant's 
land,  and  sold  the  same  to  him ;  and 
C.  formerly  owned  the  plaintift''s 
land.  It  was  held,  that  declarations 
of  the  plaintiff  to  the  defendant, 
while  owner  of  the  defendant's  land, 
and  while  negotiating  the  sale  of  it 
to  the  defendant,  that  he  had  a  right 
to  drain  it  over  C.'s  land,  were  ad- 
missible in  evidence.  Stetson  v.  How- 
land,  2  Allen  (Mass.),  591.  So,  also, 
where  a  person  enters  upon  land  in 
order  to  take  advantage  of  a  forfeit- 
ure, to  foreclose  a  mortgage,  to  de- 
feat a  disseizin,  Co.  Lit.  49  b,  245  b; 
Robinson  v.  Swett,  3  Me.  316;  3  Bl. 
Com.  174^  175,  or  the  like;  or 
changes  his  actual  residence  or  dom- 
icil,  or  is  upon  a  journey,  or  leaves 
his  home,  or  returns  thither,  or  re- 
mains abroad,  or  secretes  himself; 
or,   in    fine,   does  any   other   act,   ma- 


426  Evidence.  [Chap.  14 

an  inquiry  as  to  the  state  of  mind,  sentiments,  or  dispositions  of  a 
person  at  any  particular  period,  his  contemporaneous  declara- 
tions are  admissible  as  parts  of  the  res  gestae}'  ■  Where  one  buys 
realty  and  has  it  placed  in  his  wife's  name,  only  his  contemporan- 
eous acts  and  declarations  are  admissible  to  rebut  the  presump- 
tion of  a  gift.^^  Declarations  of  a  party  on  closing  an  alley  that 
he  did  so  to  prevent  the  public  from  acquiring  rights  by  adverse 
user  are  admissible."  Evidence  is  admissible  to  show  that  an 
owner  of  stock  put  it  in  the  hands  of  a  third  party  for  transfer 
to  any  one  whom  his  broker  might  procure  as  purchaser,  and  he 
may  also  prove  his  declarations  made  at  the  time  of  placing  the 
stock  in  the  hands  of  the  third  party  tending  to  show  that  his 
act  was  in  performance  of  his  contract  with  the  broker.^''  Where 
it  is  material  to  ascertain  whether  one  was  riding  on  a  train 
lawfully,  it  was  competent  to  prove  for  w^hat  purpose  he  boarded 
the  train  by  his  statements  and  declarations,  made  at  or  about 
the  time  he  was  in  the  act  of  getting  upon  the  train.^®  On  the 
question  whether  a  donor  was  acting  for  himself  or  as  agent  for 
another  his  declarations  made  at  the  time  of  the  gift  are  ad- 
missible as  part  of  the  res  gestae,  but  not  Avhen  made  some  time 
after  the  gift,  on  the  question  whether  it  was  a  gift  or  an  ad- 
vancement.^^ The  acts,  appearances,  and  declarations  of  those 
charged  with  crime  are  admissible  when  so  interwoven  with  each 
other  and  with  the  crime  that  they  cannot  well  be  separated 
without  depriving  the  jury  of  proof  that  is  essential  in  order  to 
reach  a  just  conclusion.^^  In  a  suit  for  enticing  away  a  servant, 
the  servant's  statement  at  the  time  of  leaving  his  master  will  be 
received,  as  tending  to  show  the  motive  of  his  departure  ;^^  and 

terial    to    be    understood:    his    decla-  "  Barthelemy  v.  The  People,  &c.,  2 

rations  made  at  the  time  of  the  tran-  Hill    ( N.  Y. ) ,  248,  257. 

saction,  and  expressive  of  its  charac-  '^Johnson  v.  Johnson,  96  Md.   144, 

ter,  motive,  or  object,  are  regarded  as  53  A.  792. 

"  verbal    acts,    indicating    a    present  "  Burgess,  etc.,  of  New  Windsor  v. 

purpose     and     intention,"     and     are  Stockdale,   95   Md.   196,  52  A.   596. 

therefore  admitted  in  proof,  like  any  '*  Mittingly  v.  Pennie.  105  Cal.  514. 

other    material    facts.       Bateman    v.  39  P.  200,  45  Am.  St.  Rep.  87. 

Bailey,  5  T.  R.  512,  and  the  observa-  '^Matthews   v.    Great    Northern    R. 

tions'  of    Mr.    Evans    upon    it,    in    2  R.   Co.,  81   Minn.  363,  84  N.  W.   101, 

Poth.  Obi.  App.  No.  xvi.  §   11:   Raw-  83  Am.  St.  Rep.  363. 

son  V.  Haigh.  2  Bing.   99:   \  achei'  v.  "Johnson  v.   Cole,   178   N.  Y.   364, 

Cocks,   M.  &   M.    353;   Smith   v.   Cra-  70  N.  E.  R.  873, 

mer    1  Bing.  N.  C.  585;   Doe  v.  Ark-  "St.    Clair   v.    United    States.    154 

wriaht    5   C    &  P.   575:      Gorham  v.  U.  S.  134,  149,  14  S.  Ct.  1002. 

Canlon,  5  Me.  266 ;   Thorndike  v.  City  '"  Hadley  v.  Carter,  8  N.   H.  40. 

of  Boston,  1  Met.    (Mass.)    242. 


Sec.  137.] 


Res  Gestae. 


427 


where  an  action  of  trover  was  brought  against  the  assignees  of 
a  bankrupt,  and  it  appeared  that  the  plaintiff,  at  the  recom- 
mendation of  the  bankrupt,  had  sent  some  goods  to  a  dyer,  and 
had  tokl  him  that  the  bankrupt  would  call  and  give  directions 
about  them,  it  was  held  that  these  directions  should  have  been 
submitted  to  the  jury  on  behalf  of  the  assignee,  as  affording  some 
evidence  of  a  dealing  with  the  goods,  if  not  of  the  consent  of  the 
true  owner  to  such  dealing.^*' 


=»  Sharp  V.  Newsholme,  5  Bing.  N. 
C.  713. 

In  an  action  on  the  warranty  of  a 
horse,  the  question  being  whether  it 
had  fits,  and  it  being  proved  that  the 
plaintiff  kept  it  in  his  livery  stable-, 
though  its  labor  was  needed,  a  wit- 
ness testified  that  he  was  directed  by 
the  plaintiff  not  to  let  it  because  it 
had  fits.  It  was  held,  that  this  tes- 
timony was  admissible  as  part  of  the 
res  gestae.  Hersom  v.  Henderson,  23 
N.   H.   498. 

So  where  the  purchase  of  a  horse 
returned  it  to  the  vendor  with  a  mes- 
sage that  "  he  would  fix  it  all  right," 
it  was  held,  that  the  fact  might  be 
considered  by  the  jury  with  other 
corroborative  facts,  in  determmmg 
whether  the  purchaser  had  promised 
to  pay  for  the  use  of  the  horse,  if  the 
jury  were  satisfied  that  the  declara- 
tions were  part  of  the  act  of  redeliv- 
ering the  horse.  Knauss  v.  Shiffert, 
58  Penn.   St.  152. 

Where  property  was  sold  and 
transferred  for  the  purpose  of  paying 
debts  due  to  the  vendee  and  to  other 
creditors,  the  declarations  of  the  ven- 
dor and  vendee,  at  the  time  of  the 
deUvery  of  possession  under  the  sale, 
were  held  admissible  as  part  of  the 
res  gestae,  as  was  the  paper  by  which 
the  vendor  assumed  to  pay  the  debts, 
to  rebut  the  allegation  of  fraud:  and 
also  evidence  that  before  the  date  of 
the  sale  the  vendee  had  borrowed 
money  for  the  purpose  of  reloaning  it 
to  tlie  vendors.  York  County  Bank 
V.  Carter.  38  Penn.  St.  446. 

In  a  Missouri  case,  a  husband  dy- 
ing, his  widow  and  heirs  made  a  ai- 
vision  of  his  estate,  including  slaves, 
among  them.  Tlie  widow  afterwards 
dying\  the  administrators  of  the  hus- 
band instituted  suit  against  persons 
claiming    under    the    widow,    for    the 


possession  of  certain  slaves  that  had 
been  assigned  to  the  widow.  It  waa 
held,  that  a  bond  executed  by  the 
heirs  at  the  time,  binding  them  to 
abide  by  the  division,  but  which  was 
not  signed  by  the  widow,  though  read 
over  to  her  and  not  objected  to,  was 
admissible  in  evidence  as  part  of  the 
res  gestae,  in  behalf  of  the  adminis- 
trators, to  show  that  the  assignment 
was  made  to  the  widow  as  dower  and 
not  absolutelv.  Salmons  v.  Davis,  29 
Mo.   176. 

Where  the  issue  was,  whether  cer- 
tain  property  had  been  sold      to  the 
defendant   or  a   third   person,   it  was 
held    competent    for    the    plaintiff    to 
show  that  just  before  the  sale  he  had 
been  advised  not  to  sell  the  property 
to    such    third    person,    and    that    he 
may   prove   tliis    by    the    person    who 
gave    him    the    advice.        Bronner    v. 
Frauenthal,  37  N.  Y.   166.     Where  it 
is   sought    to   prove   a   sale   of   goods, 
and  a  warranty  thereof,  it  is  proper 
to  show  all  that  was  said  by  the  par- 
ties  during  the   pendency   of  the  ne- 
gotiations.      Elliott   V.    Stoddard,   98 
Mass.    115.     Where    property   is    sold 
at  a   public   sale,  declarations   of  by- 
standers  are   held   admissible   as   evi- 
dence  in    regard  to   it.        Stewart   v. 
Severance,    43    Mo.    322.        W^here    a 
person,  at  the  time  of  loaning  money, 
declares    that    it    is   trust   money,    or 
money  that  belongs  to  a  ward,   it  is 
competent  to  be  shown  bv  him.  Beas- 
ley  V.  W^atson,  41  Ala.  234.     Where  a 
stock  of  goods  has  been   attached   by 
a  slieriff  as  the  property  of  A.  which 
are  claimed  by  B.  by  virtue  of  a  sale 
from  A.   to   him,   it  is   competent,   in 
a  suit  to  test  the  validity  of  B.'s  title 
thereto,  for  B.  to  show,  by  one  who 
was   called  in  to  take   an  account  of 
the  stock,  a  conversation  at  the  time, 
between  A.  and  B.,  that  the  account 


428  EviuE.xcE.  [Cbii}).  ii 

Statements  by  a  party  in  liis  own  favor  are  not  admissible  in 
evidence  unless  tbey  are  part  of  the  res  gestae.  In  one  case  where 
the  possession  of  money  was  in  issue  and  the  mortgag-or  claiming 
to  have  the  money  claimed  it  was  buried  in  a  jar  in  the  cellar 
she  went  down  cellar  with  her  daughter  at  one  time  and  ix)inted 
out  the  place  in  the  cellar  where  she  said  the  money  was  buried, 
it  was  held  that  this  statement  was  not  admissible  as  part  of  the 
res  gestae,  for  the  reasons  that  neither  the  mortgagor  nor  her 
daughter  actually  saw  the  money  or  the  jar  in  which  it  was  con- 
tained.^^ 

So,  a  card  signed  by  the  passengers  on  a  train  at  the  time  of 
an  accident,  which  was  not  signied  until  two  days  after  the  acci- 
dent occurred,  exonerating  the  officers  from  all  blame,  is  not  admis- 
sible as  part  of  the  res  gestae  in  a  suit  against  the  company  for  dam- 
aaes.^^  But  it  is  held  that  the  acts  and  declarations  of  the  donor 
and  donee  at  the  time  of  an  alleged  gift  are  competent  to  be  shown 
to  prove  delivery,  and  a  subsequent  recognition  by  the  donor  of 
the  donee's  title  may  also  be  shown.'^  Also  that  the  statements  of 
officials  having  the  direction  of  public  work,  made  during  the 
time  that  the  work  was  being  prosecuted  for  a  municipal  coriwra- 
tion,  to  persons  engaged  upon  it,  are  admissible  to  show  the  man- 
ner and  circumstances  under  which  the  work  was  begim  and  prose- 
cuted.^*   The  surrounding  circumstances*  leading  to  the  passage  of 

of  the  stock  was  to  be  taken  for  the  charge    of    the    train    in    which    the 

purpose   of  turning   it   over   to  B.   to  goods  were  being  transported,  in  ref- 

satisfy   a    debt    due   to   him   from   A.  erence    to    the    cause    of    the    dela}% 

But  in  such  a  case  it  is  not  competent  were    held    admissible    as    a    part    of 

for  the  sheriff,  or  other  person,  who  the   res  gestae.     Sisson   v.   Cleveland, 

is  claiming  to  hold  the  goods  as  A.'s  &c.,  R.  R.  Co.,   14  Mich.  489.     In   an 

property    upon     the     attachment,    to  action  upon  a  bond,  given  to  release 

show  the  declarations  and  conduct  of  a   barge   which  had   been   attached  to 

A.  at  the  time  when  the  attachment  enforce  a  lien  upon  it  for  lumber  sold 

was  made,  and  not  qualifying  or  ex-  to  the  builder  by  the  plaintiff,  it  was 

plaining  any  material  factin  the  case  held    that    the     declarations     of    the 

not    admissible.        Pullman    v.    New-  builder   to   the   plaintiff  while   trans- 

berrv.  41  Ala.  168.  acting  the  business  as  to  the  person 

-'  Pinney    v.    Jones,    64    Conn.    545,  for  whom  he  purchased  it,  and  as  to 

30  A.  762,  42  Am.  St.  Rep.  209.  the  amount   required   in  building  the 

"  Macon,  csc,  R.  R.  Co.  v.  Johnson,  barge,  were  admissible  as  part  of  the 

38  Ga.  409.  res  gestae.  Happy  v.  Mosher.  47  Barb. 

"  Bragg  V.  Massle's  Adm'r,  38  Ala.  (N.   Y.)    501.     So   declarations   made 

89.  by  the  husband  at  the  time  of  giving 

"Maher  v.  Chicago,  38  111.  266.  his  wife  money,  as  to  the  purpose  for 

In  an  action  against  a  railroad  which  he  gave  it,  as  well  as  his  rep- 
company  for  a  breach  of  contract  in  resentations  as  to  the  person  for 
the  transportation  of  goods,  the  dec-  whom  he  was  acting  when  he  re- 
larations     of     the     engineer     having  celved  a  bill  of  sale  for  his  witV.  a'.\? 


Sec.  137.]  Res  Gestae.  429 

a  statute  authorizing  a  city  to  make  a  contract  are  admissible  to 
aid  in  its  construction."*^ 

The  statements  of  an  agent  engaged  in  conducting  the  business 
of  his  principal  relating  to  a  transaction  then  depending  are  of  the 
res  gestae'"^  Statements  made  by  an  agent  during  the  burning  of 
a  building  as  to  the  cause  of  the  fire  are  merely  narratives  of  a 
past  transaction,  viz.,  the  cause  of  the  fire,  and  are  not  part  of  the 
res  gestae}^  But  statements  of.  a  servant  of  a  distiller,  as  to  the 
condition  of  a  vat  which  had  given  way,  made  within  five  or  ten 
minutes  of  the  accident,  and  while  engaged  in  rescuing  and  caring 
for  the  plaintiff,  who  was  scalded  by  the  boiling  liquor,  are  ad- 
missible as  part  of  the  res  gestae.  The  court  admits  them  as 
made,  ''  in  the  full  heat  and  excitement  of  the  catastrophe."^^ 
Entries  in  books  of  a  third  party,  an  agent  of  the  plaintiff,  are 
not  admissible  as  part  of  the  res  gestae,  to  show  payment  of  a 
note  sued  upon.^ 

It  is  held  that,  where  a  person's  personal  habits  may  furnish 
a  key  to  the  act  in  question,  they  may  be  shown.  Thus,  when  a 
note  was  claimed  to  have  been  given  to  the  plaintiff  on  Sunday, 
it  was  held  competent  for  him  to  show  that  he  was  the  superin- 
ten<ient  of  a  Sabbath  school,  which  he  invariably  attended."^ 
Declarations  of  the  testator,  at  the  time  when  a  will  is  executed, 
are  proper  and  competent  evidence  upon  the  question  of  capac- 
ity.^"    So  it  is  held  that  the  declarations  of  a  principal  to  a  note, 

held  admissible  in  an  action  in  favor  v.   Bemis,    107   Mass.   498.        What  is 
of   the   wife.        Kells   v.   Campbell,   2  said   by  a   person   at  the   time   of  an 
Abb.   App.    (N.   Y. )    492.  accident  caused  by  him,  which  has  a 
In  a  suit  by  a  creditor  of  the  hus-  tendency   to   prove   that   the   accident 
band  to  set  aside  a  deed  of  gift  made  was  caused  by  his  carelessness,  is  ad- 
by  a  third  person  to  the  wife,  on  the  missible    to    establish    his    neglioence, 
ground    that    the    property   was    pur-  as  a   part  of  the   res  gestae.     Court- 
chased    with    the    husband's     money,  ney  v.  Baker,  34  N.  Y.  Sup.  Ct.  529. 
and  the  deed  a  fraud,  evidence  of  con-  24a  Old    Colony    R.    Co.    v.     Boston, 
versations    between    the    grantor    and  (Mass.,  190.5),  75  N.  E.  1.34. 
the   person    who    negotiated    the   sale  -^Hoffman  v.  Chicago  Title  &  Trust 
for  the  wife  at  the  time  of  the  sale,  Co.,  198  111.  452.  64  N.  E.  R.  1027. 
were  held  properly  admissible.     Tevis  -"  Balding    v.    Andrews,    12    N.    D. 
V.  Hicks,  41   Cal.    123.     In   an  _^ction  267,  96  N.  W.  305. 
against   one   for   false   representations  "  Hupfer  v.  National  Distillery  Co., 
in   the  sale  of  property,   it  was   held  119  Wis.  417,  96  N.  W.  809. 
competent  for  him  to  show  that  sim-  "'  McKeen     v.     Providence     County 
ilar    representations    were     made    to  Sav.  Bank,  24  R.  I.  542,  54  A.  49. 
him     by     credible     persons     previous  ^^  Blackwell    v.    Hamilton,    47    Ala. 
thereto,    the    evidence    having    a    ten-  470. 

dency  to  acquit  him   of  bad  faith   in  ^^  Bates  v.  Bettis,  27  Iowa,   110;    1 

making    the    representations.      Beach  Am.  Rep.  260. 


430  Evidence.  [Clilap.  14 

as  to  the  relations  thereto  of  other  parties  whose  names  are  there- 
on, made  to  the  plaintiff  at  the  time  of  obtaining  his  signature 
thereto,  are  admissible  as  a  part  of  the  res  gestae.^^ 

A  statement  by  a  public  official  at  the  time  he  turns  over  funds 
in  his  hands  to  his  successor  is  admissible  as  evidence  against  his 
sureties  as  part  of  the  res  gestae. ^^  In  an  action  for  injuries  in  a 
collision  on  a  railroad  the  trainmen's  interpretation  of  the  dis- 
patcher's orders  is  admissible  as  part  of  the  res  gestae  for  the  pur- 
jx>se  of  showing  why  they  moved  their  trains  as  they  did.'^  On 
the  issue  of  an  alleged  gift  of  a  note  by  a  decedent  to  his  niece 
evidence  is  admissible  that  she  declared  to  others  that  she  had 
the  note  in  her  possession  and  declared  the  deceased  had  given  it 
to  her  during  his  last  illness  immediately  before  his  death. ^* 
Where  suit  is  brought  on  a  claim  that  the  defendant  has  driven 
the  plaintiff's  horses  out  of  a  pasture  so  that  they  were  lost,  a 
statement  by  the  defendant's  servant  wdiile  he  was  driving  the 
horses  out  of  the  pasture  to  the  effect  that  if  the  horses  were 
found  there  again  tli^y  would  be  scattered  so  that  they  would 
never  be  found  is  not  admissible  against  the  defendant.  This 
was  not  a  statement  with  reference  to  the  act  tiien  being  done, 
but  declared  a  purpose  to  do  a  similar  act  in  the  future  in  a  par- 
ticular manner,  and  as  such  is  inadmissible  as  part  of  tlie  ixs 
gestae. ^^ 

In  an  action  against  a  physician  or  surgeon  for  maliDractice, 

"Whitehouse  v.  Hanson,  42  N.  H.  18  Md.   305.     So  it  is  held  that  the 

9.  dedarations  of  a  grantor,  at  the  time 

'^Paxton  V.   State,  59  Xeb.  400,  81  of    the   execution    of   a    deed    for    the 

N.  W.  383,  80  Am.  St.  Rep.  089.  benefit  of  his  preditors,   are  properly 

''^Wallace    v.    Boston   &    Maine   R.,  admissible  as  a  part  of  the  res  fjestae 

72  N.  H.  504,  57  A.  913.  in   a    suit    brought    to    set    aside    the 

^*  Martin    v.    Martin,    174    111.    371,  conveyance   on   the'  ground    of   fraud. 

51  N.  E.  091,  00  Am.  St.  Rep.  290.  Potter  v.  McDowell,  31  Mo.  02;    Gil- 

^  Waggoner  v.  Snody    (Tex.,  1905),  lett  v.  Phelps,   12  Wis.  .392.     So  dec- 

85  S.  W'^.  1134.  larations  of  a  grantor  of  real  estate, 

So,    where    a    married    woman    has  made  at   the   time   when   the   convey- 

signed   and    acknowledged    a    deed    of  ance    is    executed,    are    admissible    to 

lands,   jointly   with    her   husband,    in  show  the  intention  of  the  grantor  in 

proceedings   instituted   by    her   to   set  making  the  conveyance;  Kent  v.  Har- 

aside  the  deed  on  the  ground  of  fraud  court,    33    Barb.    (N.    Y. )    491;   Bad- 

or  duress,  she  may  show  the  state  of  ger  v.   Story,   10   N.   H.   108;    Gamble 

her  mind  and  health  at  the  time   of  v.   Johnson,  9   Md.   005;   but  declara- 

her    acknowledgment,    and    that    her  tions     or     admissions     made     by     a 

husband  had  preceded  this  by  threats  grantor   after  the   conveyance  is   exe- 

and   menaces,  which   had   put   her   in  cuted   are   not   admissible.     Myers   v. 

terror,   and    induced    the    act   against  Kinzie,  20  111.  30. 
her  will.     Central  Bank  v.  Copeland, 


Sec.  137.] 


Res  Gestae. 


431 


their  statements  made  in  the  presence  of  the  plaintiff  during  his 
treatment,  or  at  the  time  when  the  plaintiff  is  discharged  from 
further  treatment,  are  always  admissible  as  a  part  of  tlie  res 
gestae'}^  So  the  declarations  of  a  party,  at  the  time  of  paying 
money  to  a  creditor,  are  admissible  for  the  purpose  of  showing 
what  application  was  to  be  made  of  it;^^  the  declarations  of  the 
vendor  of  goods  made  at  the  time  of  the  sale  are  a  part  of  the  res 
gestae,  for  the  purpose  of  establishing  the  sale  and  itsi  purpose  f^ 
and  in  fact  everytliing  that  takes  place  between  the  parties  to  a 
verbal  contract  before  its  completion  ;^^  and  it  may  be  stated, 
generally,  that  whenever  it  becomes  material  to  ascertain  the 
nature  of  a  particular  act,  and  the  intention  of  the  iDei-son  who 
did  it,  w^iat  he  said  and  did  at  the  time  of  doing  it  is  always  ad- 
missible as  a  part  of  tlie  transaction  itself;**^  as  to  ascertain  the 
malady,  or  the  true  nature  of  its  effects  and  symptoms,  of  a  sick 
or  injured  person,  Avhether  made  to  a  physician  or  others,  but 
such  declarations  are  entitled  to  more  weight  when  made  to  a 
physician  during  his  treatment  of  the  patient ^^  So  the  declara- 
tions of  the  owTier  of  lands  claimed  to  have  been  dedicated  to  the 


^^  Piles  V.  Hughes,    10   Iowa,   579. 

Where,  in  an  action  for  malprac- 
tice by  a  surgeon  in  treating  a  dis- 
location, as  a  fracture,  it  was  shown 
that  if  his  diagnosis  was  correct,  a 
grating  sound  would  have  been  heard 
upon  manipulation  of  the  limb,  and 
it  was  held  that  declarations  made 
by  persons  who  were  present  at  the 
time  of  the  examination  that  they 
heard  such  a  sound  were  admissible. 
Hitchcock  V.  Burgett,  38  Mich.  501. 
Where  a  person  is  sued  for  an  assault 
and  battery,  when  the  evidence  tends 
to  show  that  the  defendant  was  as- 
saulted by  the  plaintiff  and  others 
upon  the  occasion  when  the  injury 
sued  for  was  inflicted^,  the  declara- 
tions of  any  of  the  persons  engaged 
in  the  assault  upon  him,  as  to  their 
intention  and  purpose,  are  held  ad- 
missible as  a  part  of  the  transaction. 
People  V.  Roach,  17  Cal.  297.  Where 
personal  property  is  sold  and  left  in 
the  possession  of  the  vendor,  as  agent 
of  the  vendee,  in  an  action  to  test  the 
validity  of  the  sale  it  is  held  that  the 
declarations  of  the  vendor  and  ven- 
dee at  the  time  of  the  sale  are  ad- 
missible.    Clark  V.  Rush,  19  Cal.  393. 


Where  it  becomes  material  to  show 
whether  a  deed  was  delivered  as  an 
escrow,  the  acts  and  declaration^  of 
a  party,  preceding  the  execution  of 
the  deed  by  him,  may  be  shown. 
Cheswell  v.  Eastham,  16  N.  H.  296  j 
Badger  v.  Story,  16  id.  168.  Decla- 
rations made  by  a  husband,  at  the 
time  when  money  belonging  to  his 
wife  comes  into  his  possession,  are, 
if  evincive  of  his  purpose  and  inten- 
tion, admissible  as  evidence,  when 
material,  upon  the  question  as  to 
whether  such  money  was  received  in 
trust  for  his  wife,  or  whether  he  in- 
tendedi  to  reduce  it  to  his  own  pos- 
session. Johnson  v.  Johnson's  Ex'rs, 
31  Penn.  St.  450;  Gicker's  Adm'r  v. 
Martin,  50  Penn.  St.  138;  Moyer's 
Appeal,  Xo.  44,  Weekly  Notes  of 
Cases    (Penn.),  527. 

"'Bank  of  Woodstock  v.  Clark,  25 
Vt.  308. 

"'  Dale  V.  Gower,  24  Me.  563. 

^^Pierson  v.  Hoag,  47  Barb.  (N. 
Y.)    243. 

'"  Curtis  V.  Moore,  20  Md.  93. 

"Stone  V.  Watson,  1  Ala.  236; 
Perkins  v.  Concord  R.  R.  Co.,  44  N. 
H.   223. 


432 


Evidence.  [Chap.  14 


public,  both  before  and  after  their  use  by  the  public,  to  show  his 
intention.*-     So  instructions  given  by  a  principal  to  his  agent  in 
reference  to  the  delivery  of  a  message  to,  or  the  making  of  a  de- 
mand of,  another,  when  the  message  is  delivered  or  the  demand 
made."'    What  is  said  by  the  parties  to  a  sale  in  reference  to  it 
during  the  pendency  of  negotiations.**     ^Yhat  is  said  by  a  per- 
son %vhen  paying  money  to  another,  as  to  the  application  of  it,  or 
as  to  whose  money  he  is  paying.*"     To  show  whether  goods  were 
sold  by  one  as  his  own,  or  as  the  agent  of  another,  his  declara- 
tions at  the  time  of  the  sale  are  admissible.*®    To  show  what  title 
€ne  claims  to  property  in  his  jDOssession,  his  declarations  relative 
thereto  while  he  has  the  projxjrty  in  his  iX)Ssession  are  admissi- 
ble.*^    So  where  one  sues  for  injuries  done  to  his  property  by  an- 
other, while  the  property  was  in  the  possession  of  a  servant,  the 
declarations  of  a  servant  at  the  time  of  the  injury  as  to  the  cause 
thereof  are  admissible.*^     So  it  has  been  held  that  the  exclama- 
tions of  passengers  on  a  railway  train  at  the  time  of  the  happen- 
ing of  an  accident;*®  the  declarations  of  bystanders  at  a  public 
sale  f  the  acts  and  sayings  of  a  constable  at  the  time  of  making  a 
levy  f^  of  a  public  surveyor  when  running  a  line  to  establish  the 
character  or  purpose  of  the  survey  f^  what  is  said  by  a  claimant  to 
the  sheriff  at  the  time  of  a  levy  ;^^  w^hat  is  said  by  a  person  while 
engaged  in  carrying  away  property  claimed  by  another  f*  what  is 
said  by  the  plaintiff  in  a  writ  of  attachment,  as  to  his  reasons  for 
having  it  issued,  made  at  the  time  of  its  issue.^^     Xegotiations 
between  parties  are  admissible  to  show  to  whom  credit  was  given, 
and  to  explain  the  transaction  f^  instructions  given  by  one  of  the 
parties  to  an  assistant  f'  what  is  said  by  a  person  when  money  is 
paid  to  him,  to  show  whether  it  was  received  in  full  or  not,  as 
well  as  to  show  upon  what  debt  it  was  to  be  applied  f  statements 

*^  Buchanan    v.     Curtiss,    25     Wis.  "» Stewart  v.  Severance,  43  Mo.  322. 

991;   3  Am.  Rep.  23.  "Arnold       v.       Gorr,       1       Rawle 

"Featherman    v.    Miller,    45    Penn.  (Penn.),    223;      Dobb   v.    .Justice,    17 

gt    96_  Ga.   624:      Grander  v.   McPherson,   7 

"Atherton  v.  Tilton.  44  X.  H.  452.  Jones    (X.  C),  347. 

*'  Carter  v.  Beals,  44  X.  H.  408.  ^-  George  v.  Thomas,  16  Tex.  74. 

"Milne  v.  Leisler,  7  H.  &  X.  786.  "Morgan  v.  Simms,  26  Ga.  283. 

*' Patterson  v.  Flanagan,  1  Ala.   (S.  "  Drumwright  v.   State,  29  id.  430. 

C.)    427.  "^'Wood  V.  Banker,  37  Ala.  60. 

^'Toledo  R.   R.   Co.   v.   Goddard.   25  '«  Eastman  v.  Bennett,  6  Wis.  232. 

Ind.   185.  "  Wilson  v.   Smith,  28  111.  495. 

«" Galena  R.  R.  Co.  v.  Fay,   16  111.  '^  Dillard  v.  Scruggs,  36  Ala.  670. 
558. 


Sec.  137.]  Res  Gestae.  433 

made  by  a  person  at  the  time  when  a  demand  is  made  upon  him 
for  property,  or  for  any  purpose  f  the  declarations  of  a  servant 
at  the  time  of  leaving  his  master  f  the  declarations  of  a  person 
engaged  upon  work,  to  show  for  whom  he  was  working  and  the 
nature  of  the  contract;"  the  declarations  of  a  person  on  leaving 
home  as  to  where  he  was  going  and  the  nature  of  his  business  ;^^ 
declarations  of  the  principal  to  a  note,  as  to  the  relation  of  those 
whose  names  are  already  upon  it,  made  to  one  whose  signature 
he  obtains  thereto  f  declarations  of  one  in  the  possession  of  prop- 
erty, made  at  the  time  when  the  property  was  delivered  to  him,  to 
show  the  nature  and  purpose  of  his  possession,^"'  have  been  held 
admissible  as  a  part  of  the  res  gestae;  as  the  declarations  of  the 
vendor  before  the  sale  as  to  the  character  or  quality  of  the  goods  ;^' 
or  of  one  in  the  possession  of  land,  as  to  the  extent  of  his  claim, 
and  the  character  of  his  occupancy  f  or  his  intention  in  doing  a 
certain  act,  as  that,  by  clearing  land  and  burning  charcoal  there- 
on, he  intended  to  settle  and  improve  the  lands.*^''     So  it  has  been 
held  that  the  declarations  of  a  person  having  personal  property  in 
his  possession,  made  before  any  claim  is  made  to  the  property  by 
another,  may  be  given  in  evidence  in  an  action  between  him  and 
a  person  claiming  the  property,  but  that  the  weight  to  be  given  to 
such  evidence  is  for  the  jury.^^     Thus  it  will  be  seen  that,  when- 
ever the  acts  or  declarations  of  a  party,  made  at  the  time  of  a 
transaction,  and  so  intimately  connected  therewith  as  to  form  a 
part  of  it,  which  tend  to  explain  the  transaction,  or  to  aid  in  ar- 
rivino-  at  the  real  nature,  character,  and  purpose  of  the  transaction, 
are  admissible  in  evidence  as  well  for  as  against  the  party  making 
them ;  and  such  evidence  is  admissible  not  only  in  actions  between 
the  parties  themselves,  but  also  in  actions  for  or  against  their 
personal  representatives,  or  those  who  are  privy  in  interest  with 
the  parties.     The  justice  of  the  rule,  permitting  all  the  acts  and 
declarations  of  a  party  immediately  connected  with  it,  and  ma- 

=^»Lamphy  v.  Scott,  24  Miss.  528.  ^»  Land  v.  Lee,  2  Rich.    (S.  C.)    168. 

^°  Hadley  v.  Carter,  8  N.  H.  40.  ^  Sailor   v.    Hertzogg,    2    Penn.    St. 

«i  Printop  V.  Mitchell,  17  Ga.  5o8.  182. 

>==  State    V     Howard,    32    Vt.    380;  ^  Jones  v.   Brownfield,  id.  5.5. 

Autauqua  Co.  v.  Davis,  32  Ala.  713.  "« Gerry  v.  Terrill,  9  Ala.  206;  Hor- 

^^  Whitehouse  v.  Hanson,  42  N.  H.  ton   v.   Smith,   8    id.    73;      Trotter  v. 

9  Watson,  6  Humph.    (Tenn.)    509. 

^^  State   V.    Schneider,   35   Mo.   533 ; 
Johnson  v.  Boyles,  26  Ala.  576. 

28 


434  Evidence.  [Cluip.  14 

terial  thereto,  to  be  given  in  evidence  to  show  the  real  intention, 
object  and  purpose  of  parties  to  a  contract,  when  any  reasonable 
doubt  exists  from  the  language  of  the  contract  itself,  as  well  as 
the  acts  and  declarations  of  parties  to  any  transaction,  to  show 
the  real  nature  and  character  of  the  transaction  or  act,  is  unques- 
tionable. The  real  intention  of  a  person  in  a  transaction,  which 
is  not  reduced  to  writing,  can  be  gathered  in  no  other  w^ay.  Men 
act  from  secret  motives,  and  their  declared  intention  is  very  often, 
quite  at  variance  with  the  real  motive  which  actuates  them. 
Therefore,  the  only  real  key  thereto  is  their  acts,  and  any  act  cal- 
culated to  throw^  light  upon  that  point,  and  intimately  connected 
Avith  it,  are  always  admissible.  Thus,  it  has  been  held  that,  when 
fraud  in  the  purchase  or  sale  of  property  is  in  issue,  it  is  compe- 
tent to  show  other  similar  frauds  committed  by  the  same  parties, 
at  or  near  the  same  time,  as  tending  to  establish  the  animus  of  the 
parties  in  the  transaction  in  question,  and  to  show  their  fraudu- 
lent intent — as,  in  a  proceeding  for  the  forfeiture  of  a  distillery 
for  fraudulent  distillation,  it  has  been  held  competent  to  show 
the  fact  that,  by  the  decree  of  another  court,  liquors  from  the 
same  distillery  had  been  forfeited.*''^  So,  it  has  been  held  compe- 
tent to  show  in  a  proceeding  for  a  forfeiture  under  the  Internal 
Revenue  Law,  that  the  defendants  have  been  guilty  of  other  simi- 
lar frauds,  in  order  to  establish  their  fraudulent  intent.™  So,  in 
an  action  against  a  commission  merchant  for  fraudulently  selling 
the  goods  of  a  customer  to  an  insolvent  purchaser,  evidence  of 
similar  fraudulent  acts  -at  about  the  same  time  have  been  held 
competent  upon  the  question  of  intent,'^  and  in  proceedings  for 
forfeiture,  under  the  Customs  Law,  by  means  of  false  invoices, 
or  undervaluation  of  goods,  it  is  held  that  evidence  of  previous 
similar  transactions,  both  before  and  after  the  transaction  in  ques- 
tion, may  be  shown.^^     Thus  it  will  be  seen  that,  while,  in  order 

'^^  United    States   v.   One    Distillery,  197;   Wood  v.  X.  Y.,  IG  Pet.    (U.  S.) 

2  Bond   (U.  S.),  399;   Butler  v.  Wat-  342;   Buckley   v.    U.    S.,   4   How.    (U. 

kins,  13  Wall.    (U.  S.)    456.  S.)    251;      Alfonso   v.  U.   S.,  2   Story 

■"United  States  v.  Merriam,  3  Chi-  (U.  S.) ,  421.     In  Rex  v.  Davis,  6  C. 

cago  Legal  Xews.  114;   United  States  &  P.  177,  it  was  held  that,  in  a  prose- 

V.  Thirty-six  Barrels  of  High   Wines,  cution   for   receiving   stolen   goods,    it 

7  Blatch.   (U.  S. )   469;   United  States  was   competent   to   show   that  the   re- 

V.  Four  Cases  Merinoes,  2  Paine    (U.  spondents,     who     were     pawnbrokers, 

S. ),  200.  had  received  other  stolen  goods  from 

■'^  Garth   v.    Bullard,    23    How.     ( U.  the  same  person,  with  a   view  to  es- 

S.)    172.  tablish   the   scienter.     But,   while   the 

"Taylor  v.  U.   S.,  3  How.    (U.   S.)  rule    as    applied    to    this    case,    and 


Sec.  138.]  Ees  Gestae.  435 

to  show  a  person's  intent  in  a  particnlar  matter,  transactions  be- 
tween the  same  parties  of  a  similar  character  may  be  shown,  simi- 
lar transactions  between  otJier  persons,  to  which  one  of  the  parties 
was  a  party,  are  never  admissible.'^ 

Sec.  138.  Declarations  as  to  Title  and  Possession  of  Lands. 

It  is'  not  necessary,  in  order  to  warrant  such  evidence,  that  the 
act  done  with  which  the  declaration  is  comiected,  shoukl  be  a 
single-  effort  or  a  positive  transaction  in  the  common  sense  of  the 
term.  It  may  he  continuous  for  a  series  of  years,  and  of  a  pas- 
sive or  negative  character.  Thus  possession  of  real  estate  for  a 
long  time  may.  be  qualified  and  explained  by  the  declaration  of 
the  possessor,  the  apparent  owner  in  fee  being  thus  cut  down  to 
the  mere  squatter,  or  the  apparent  scjuatter  elevated  to  the  owner 
in  fee,  as'  is  done  every  day  in  our  courts.^  So  also  the  apparent 
general  owner  of  personal  property  may  be  turned  into  a  bailee 
or  trespasser,  and  e  converso.  And  see  the  subsequent  notes. 
Long  forbearance  may,  in  like  manner,  be  shown  to  signify  abso- 
lute title,  or  temporary  tenancy  in  another,  and  an  apparent  legal 
resident  or  citizen  reduced  to  the  temporary  sojourner.  And  it 
makes  no  difference  whether  the  declarant  is  alive,  and  a  com- 
petent attainable  witness,  or  is  dead.  The  declaration  is  identi- 
cal with  the  act,  and  may  be  proved  in  the  same  manner  as  might 
the  hand  and  seal  of  the  declarant,  either  by  himself,  or  by  any 
person  who  saw  him  sign  and  seal. 

generally   as    restricted   in    that   case  Rapallo,  J.,  in  the  ease  referred  to 

to     transactions     between     the     same  that    "the     fact    that    the     prisoner 

Ijcirtics,    may    not    be    obnoxious    to  made    an    unauthorized    use    of    the 

criticism,  yet  the  case  itself,  and  the  name    of    one    person,    if    established 

consideration    given    the   question    by  shows  that  he  was  morally  capable  of 

GuRiXEY,  J.,  on  the  trial,  does  not  en-  committing  the   same  offense  against 

title    it    to   great    weight   as    an    au-  another,    but    does    not    legitimatelu 

thonty.  The  same  rule,  however,  was  tend  to  show  that  he  did  so  " 

adopted  in   Rex  v.  Dunn  &  Smith,    1  '^  Jones  v.  Knowles,  ante.     In  State 

M.   C.   C.    147.        In   Coleman   v.   The  v.  Howard,   32  Vt.   380,  the   respond- 

People,  55  N.  Y.  81,  it  was  held  that  ent    was    arrested    for    procuring    an 

evidence     that     the     respondent     had  abortion,   and   the   fact   of   the   death 

received   other    stolen    property   from  having  been  proved  to  have  occurred 

other  persons  was   not   admissible  to  at  his  house,  and  other  circumstances 

establish  the  scienter;    and  in  People  tending  to  establish  the  crime    it  was 

V.  Corbin,  56  N.  Y.  303;    15  Am.  Rep.  held  that  the  declarations  of  the  de- 

427,    it    was    held    that    evidence    of  ceased  at  the  time  she  left  home,  as 

other  forgeries  by  the  respondent  was  to   her   purpose    in   going   to    the    re- 

not      admissible      in      a      prosecution  spondent's   house,  were  admissible  as 

-•'gainst  him  for  forging  the  name  of  a  part  of  the  res  gestae, 

another  peis(m.     It  was  well  said  by  ^  Human  v.  Pettet,  5  B.  &  Aid    223 


4:36  Evidence.  [Cliap.  14: 

On  the  question  of  the  ownership  of  a  saloon  in  a  certain  town 
the  statements  of  a  party  in  possession  of  the  saloon  are  material.^ 
The  declaration  of  one  in  possession  of  land  that  he  was  acting  as 
agent  for  A.  is  admissible  as  to  the  title  of  one  claiming  under  A.^ 
Declarations  of  a  deceased  occupier  of  land  holding  under  a  con- 
tract for  purchase,  are  admissible  on  the  question  of  title  when 
made  while  the  declarant  was  in  occupation,  and  when  made  in 
the  course  of  his'  business  of  occupation,  as  on  the  premises  or  to 
the  agent  of  the  record  owner/  So  declarations  made  bv  one  in 
possession  of  land,  characterizing  or  explaining  his  claim  to  o^vner- 
ship,  or  in  disparagement  of  his  oAvn  title,  are  competent  not  only 
as  evidence  against  the  declarant,  but  against  all  claiming  under 
him.^  Declarations  of  an  owner  in  possession  of  property  as  to 
his  right  of  easement  are  admissible  against  a  subsequent  grantee.^ 
Although  declarations  by  one  in  possession  of  lands  as  to  his 
ownership  are  admissible  in  his  favor  as  part  of  the  res  gestae, 
explaining  his  possession,  still  declarations  by  a  deceased  person, 
when  out  of  possession,  are  not  comj^etent,^  as  a  claim  to  own  cer- 
tain lands,^  or  to  show  his  object  and  purpose  in  making  the  sale,^ 
or  to  show  undue  influence,^"  or  fraud  in  the  execution  of  the  con- 
veyance/^ 

*  Lehman  v.  Chapel,  70  Minn.  496,  vendor  after  the  conveyance  admit- 
73  N.  W.  402,  68  Am.  St.  Rep.  550.  ting  his  fraudulent  intent  are  admis- 

^  Murphy   v.   Dafofe    (S.    D.,    1904),  sible  as  part  of  the  res  jrcs^ae  if  he  is 

99  N.  W.  86.  still  in  actual  possession  of  the  prop- 

*  Walsh  V.  Wheelwright,  96  Maine,  erty,  and  though  he  is  not  in  posses- 
174.  52  A.   649,  653.  sion  of  the  property  his  declarations 

^Eatliflf  V.  Ratlijf,  131  N.  C.  425,  as  to  the  intent  with  which  he  made 
42  S.  E.  887;  Shaffer  v.  Gaynor,  117      the    conveyance    are    admissible    for 

N.  C.  24,  23  S.  E.  156.  the    purpose    of   showing   that   intent 

*■  Quick   V.   Cotman,   124   Iowa,  102,      although   not  for   the   purpose   of   es- 

99  N.  W.  301.  tablishing  the  intent  of  the  vendee  in 

"  Holton    V.    Dunkar,    198    111.  407,       accepting   the  .conveyance    or    dispar- 

64  N.  E.  R.  1050.  aging  the  vendee's  title  to  the   prop- 

*  Dozier  v.  MeWhorter,  117  Ga.  erty.  But  tlie  declarations  of  the 
786.  45  S.  E.  61.  vendor  after  the  conveyance  are  hear- 

Statements  by  a  grantor  after  the  say    and    not     admissible.        Kyd    v. 

delivery  of  a  deed,  to  the  effect  that  Cook.  56  Neb.   71,  76  N.  W.   524,   71 

he  is  the  owner  of  the  land  are  not  Am.    St.   Rep.    661.        Where   the   va- 

admissible  to  overthrow  the  presump-  lidity   of   a   mortgage   is   attacked   by 

tion   that   the   deed  was   delivered   as  another    creditor    statements    of    the 

of  its  date.     Leonard  v.  Fleming   (N.  mortgagor   made   after   the   execution 

D.,  1905),  102  N.  W.  308.  of  the  mortgage  as  to  the  good  faith 

°  Burg  V.   Rivera,    105   La.    144,   29  of  the  transaction  are  not  admissible 

So.  482.  against     the     mortgagee     unless     the 

^*  Adair  v.   Craig,   135  Ala.  332,  33  mortgagee  is  shown  to  be  a  party  to 

So.  902.  or  cognizant  of  the  fraud.     Meyer  v. 

"  \Miere  a  conveyance  is  assailed  Munroe  (Idaho,  1903),  71  Pac.  969. 
as  fraudulent  the  declarations  of  the 


Sec.  138.]  Res  Gestae.  437 

In  a  recent  case  the  Supreme  Court  of  Maine  draws  a  distinc- 
tion between  declarations  eifecting  the  validity  of  the  record  title 
and  declarations  as  tx3  matters  which  must  be  proved  by  parol. 
The  court  holds  that  as  to  boundaries,  rights  by  prescription  and 
the  like  declarations,  by  one  in  possession,  may  bind  his  suc- 
cessors in  title  but  not  as  to  the  validity  and  authenticity  of  tlie 
deed  under  which  he  holds.^"  Declarations  enlarging  the  interest 
of  the  possessor  are  inadmissible  as  self-serving  declarations  un- 
less the  possessor  claims  title  by  adverse  possession.  In  tGe  latter 
case,  where  the  owner  does  not  rely  upon  a  deed  for  his  title,  he 
must  prove  that  his  possession  was  under  a  claim  of  right  and  so 
such  declarations  are  really  evidence  tending  to  prove  one  of  the 
elements  to  title  necessary  to  be  proved  in  cases  where  title  b^ 
limitation  is  relied  on.^^  Declarations  by  former  owners  of  land 
are  not  admissible  against  their  gi-antees,  .as  to  accretions,  for  the 
reason  that  an  accretion  is  determinable  solely  by  reference  to  tlie 
fact  of  accretion,  and  not  by  an  assertion  of  a  claim  of  owner- 
ship." 

In  case  of  declarations  brought  forward  to  qualify  either  tem- 
porary or  continuous  acts  of  possession,  we  are  first  to  be  satisfied, 
prima  facie,  at  least,  that  there  is  a  possession.  This  may  appear 
by  actual  occupancy,  inclosures,  partial  occupancy  under  a  deed 
or  contract,  which  carries  out  a  constructive  possession  commensu- 
rate with,  its  terms  of  local  description,  acts  of  ownership,  etc., 
and  an  act,  which  would  be  deemed  a  very  slight  indication  of 
possession  and  consequent  ownership,  especially  in  the  unsettled 
parts  of  this  country,  will  let  in  proof  of  declarations.  Under  this 
general  doctrine  it  has  been  held  that  the  declarations  made  by  the 
warrantor  in  a  deed,  while  in  possession,  going  to  show  in  what 
character  and  with  what  intent  he  entered  and  continued  hite  pos- 
session, are  admissible  in  favor  of  the  title  derived  from  him.^^ 
And  on  a  question  of  settlement,  one  party  having  given  in  evi- 
dence long  adverse  possession  of  land  by  the  father  of  the  paupers, 
to  make  out  that  he  had  a  settlement  as  a  freeholder,  it  was  held 

"Phillips  V.  Laughlin,   99   Me.   26,  the  son.     Butler  v.   Butler,    133   Ala. 

58  A.  64.  377,  32  So.  579. 

"Swope  V.  Ward,   IS'5  Mo.  316,  84  "  Bellefontaine    Imp.    Co.    v.    Nied- 

S.  W.  895.     Where  a  son  claims  land  ringhaus,   181   111.  486,  55  N.   E.   184, 

by  adverse  possession  the  evidence  of  72  Am.  St.  Rep.  269. 

declarations    of    his    deceased    father  '^  Youngs   v.   Vredenburgh,    1    John, 

that  he  had  given  the  land  to  his  son  (N.  Y.)    158. 
is  incompetent  to  show  possession  in 


438 


Evidence. 


[Chap.  14 


that  the  other  j^arty  might  show  the  father's  clech^raetions  that  he 
held  merely  under  a  contract  for  a  deed,  andhad  no  title/^ 

In  this  class  of  cases-,  it  has  been  made  a  question  whether,  after 
a  prima  facie  right  has  been  established  by  proof  of  an  apparent 
adverse  possession  for  a  sufficient  length  of  time  to  confer  the 
title,  evidence  of  the  possessor's  declarations  going  to  cut  down 
such  title,  were  not  inadmissible  as  coming  within  the  Statute 
of  Frauds. 

The  general  doctrine  that  the  declarations  of  a  tenant  in  pos- 
session of  land  are  admissible  as  part  of  the  res  gestae,  for  the 
purposes  explained  supra,  has  seldom  been  denied.  A  few  cases 
have,  apparently  through  inadvertence,  gone  the  other  way ;  but 
they  have  generally  been  afterwards  given  up  by  the  very  courts 
in  which  they  were  decided.  In  one  case,  the  defendant  in  eject- 
ment, claiming  that  certain  tenants  in  j^osscssion  held  under  him, 
offered  to  show  their  acknowledgments  to  that  effect,  which  was 


^^  West  Cambridge  v.  Lexington,  2 
Pick.    (Mass.)    536. 

Thus,  in  trespass,  quare  claiisinn 
fregit,  it  appeared  that  the  parties 
owned  adjoining  lots,  and  the  defend- 
ant gave  evidence  of  a  possession  for 
thirty  years,  according  to  a  crooked 
fence  between  them,  the  plaintiff 
straightened  the  fence,  but  the  de- 
fendant tore  the  straight  fence  down. 
The  palintiff  offered  to  prove  acts 
and  declarations  of  the  defendant 
since  the  expiration  of  the  thirty 
years,  showing  that  the  old  fence  was 
built  for  mutual  accommodation, 
without  any  view  to  title,  and  that 
the  occupation  was  not  adverse.  The 
court  said:  "It  is  urged  that  a 
complete  possessory  title  was  ob- 
tained up  to  the  line  of  the  old 
fence,  and  that  all  evidence  of  acts 
or  declarations,  which  took  place 
afterward,  are  irrelevant  and  inad- 
missible to  prove  the  character  of  the 
previous  possession.  If  the  premises 
are  well  founded,  the  argviment  is 
sound,  and  the  conclusion  logical.  But 
the  very  question  was  as  to  the  na- 
ture and  character  of  that  antecedent 
possession;  and  the  acts  and  declara- 
tions of  the  parties  owning  the  es- 
tates, made  after  thirty  years,  which 
had  a  tendency  to  show  their  motives 
and    views    during    the   thirty    years, 


were  proper  to  show  the  nature  of 
the  occupancy,  and  rebut  the  infer- 
ence which  would  otherwise  follow 
from  the  act  of  possession.  Surely,  if 
a  written  agreement  had  been  "pro- 
duced showing  that  the  defendant 
Mas  allowed  to  maintain  a  crooked 
fence  until  the  plaintiff  should  choose 
to  have  one  back  upon  tlie  true  divi- 
sional line,  it  would  defeat  all  claim 
to  the  land  in  dispute  on  account  of 
the  thirty  years'  possession.  Con- 
fessions of  the  party  in  possession, 
claiming  under  tliat"^  title,  his  acts 
and  declarations  having  a  tendency  to 
show  such  arrangement  and  under- 
standing,- are  equally  competent  evi- 
dence." Church  v.  Burghardt,  8  Pick. 
(Mass.)  327.  In  a  similar  case,  in 
the'  state  of  New  York,  where  the 
possession  exceeded  twenty-five  years, 
and  appeared  to  have  been  adverse, 
the  mere  declarations  of  the  defendant 
that  the  line  should  have  been  a 
straight  one,  without  any  express  ad- 
mission showing  that  his  possession 
had  not  been  adverse,  was  held  not 
admissible,  or  rather,  not  sufficient 
to  entitle  the  plaintiff  to  the  straight 
fence  which  they  had  built  between 
the  two  extremities  where  the  de- 
fendant said  the  fence  should  have 
run.  StyA^esant  v.  Tompkins,  9  John. 
(X.  Y.)    61. 


Sec.  138.]  Res  Gestae.  -l'^9 

denied  as  hearsay,  witliout  apparently  adverting  to  the  que-tion 
whether  these  acivnowledgTOents  might  not  be  considered  a  part 
of  the  res  gestae}^  That  they  might,  was  afterwards  conceded  by 
the  same  court  in  another  case,  where  the  usual  distinction  be- 
tween being  in  and  out  of  possession  is  taken. 

It  is  well  settled,  however,  that  the  tenant's  declarations  can  in 
no  case  be  received  to  shake  a  clear  documental  title  derived  to 
himself  from  the  owner,^^  or  if  by  parc.l,  to  show  title  in  another 
which  could  only  arise  documentally.  Either  would  be  a  plain 
violation  of  the  Statute  of  Frauds.^*^ 

It  is  hardly  necessary  to  observe  that  hearsay  making  a  part  of 
the  res  gestae,  as  well  as  all  other  declarations,  in  order  to  their 
l)eing  competent,  must  not  only  relate  to  such  facts  as  are  sus- 
■ceptihle  of  oral  proof,  hut  must  also,  like  other  evidence,  he  rele- 
vant to  the  matter  in  hand,  must  bear  upon  the  point  of  inquiry, 
and  come  under  subordination  to  other  general  rules  which  govern 
in  the  admission  of  testimony.  All  questions  of  evidence  must  be 
considered  in  reference  to  the  particular  circumstances  under 
which  it  is  offered.^^  So,  also,  under  similar  qualifications,  the 
declarations  of  persons  accompanying  their  acts  of  forbearance  to 
take  possession,  may  be  given  in  evidence. 

The  declaration  of  a  tenant  in  possession  is  constantly  received 

"Calvett   V.    Fitzgerald,    Litt.    Sel.  White,    14    East   332,     In    a   writ   of 
Cas     (Kv  )   388  entry     the     demandant     claimed     the 
"May  V    Jones,   4  Litt.    (Ky.)    21.  premises  as   part  of  a  mill   privilege 
^''Readina'  v    Weston,   7   Conn.   143.  granted  to  Ham;   and  to  show  that  it 
2°  Burr    V     Sherman,    6    John.     (X.  was  within  the  grant,  proved  grants 
Y  \    J 9  from  Ham  to  several  persons,  of  land 
"Human     v      Pettett,     antr.      The  which  they  took  possession  of  as  the 
plaintiff     claimed     a     right     to     the  mill  privilege,  and  built  a  mill.     The 
exclusive    fellin^r    and    converting    of  defendant   claimed  that  the   premises 
trees     in     a     certain     belt     of     wood  in  question  did  not  come  within   the 
surrounded    bv   tenants,   he    founding  grant   to    Ham,    and   was   allowed   to 
the   right  on  "long  usage,  and  sought  prove    that    when    the    mill    built    by 
from   this  to  have   a  grant   or   reser-  the   grantees   of   Ham   was   to    be   re- 
vation  presumed  by  the  jury:  and  he  built,  some  of  the  grantees  refused  to 
was   allowed  to  giVe   in   evidence  the  join  in  the  rebuilding,  saying  it  stood 
declarations  that  such  was  his  right.  on  Allen's  land,  under  wdiom  the   de- 
made  bv  the  surrounding  tenants.     It  fendant  now  claimed.     The  court  say 
was  objected   that  this  was   hearsay,  their  declarations  were  admissible  as 
but  answered   that   it  was   a  part   of  a   part  of  the  res  gestae.     The   mere 
the  res  gestae;  for  it  was  accompan-  act   of    abandoning  was   equivocal    as 
ied   with   forbearance  by   the   various  to  the   motive.     The   declarations   re- 
tenants    who    made   the    declarations,  moved  the  doubt,  and  were  admissible 
and  their  landlords,  to  exercise  their  to  qualify  the  act,  and  in  that  sense 
right     themselves,     and     leaving    the  made  a  part  of  it.     Down  v.  Lyman, 
whole    to    the    plaintiff.      Stanley    v.  3  N.  H.  486. 


440  Evidence.  [Cbap.  14 

as  to  whom  he  held  under;  not  as  evidence  of  title,  but  as  evi- 
dence of  possession,  and  the  character  of  the  possession.^^ 

Sec.  139.  Spontaneity  of  the  Acts  and   Declarations  Essential; 
What  is. 

As  has  previously  been  stated,  to  make  acts  or  declarations  a 
part  of  the  res  gestae,  they  must  be  contemporaneous  with  the 
main  fact,  but  in  order  to  he  contemporaneous  they  are  not  re- 
quired to  he  precisely  concurrent  in  jwint  of  time.  If  the  declara- 
tions spring-  out  of  the  transaction — if  they  elucidate  it — if  they 
are  voluntary  and  spontaneous,  and  if  they  are  made  at  a  time  so 
near  to  it,  as  reasonably  to  preclude  the  idea  of  deliberate  design, 
they  are  then  to  be  regarded  as  contemporaneous.  The  reason  for 
this  rule  is  apparent.  That  which  properly  is  admissible  as  a 
part  of  the  res  gestae  is  admissible  for  as  well  as  against  the 
party  making  the  declaration  or  doing  the  acts  claimed  to  form  a 
part  of  tlie  transaction,  and  nothing  can  properly  be  permitted, 
which  is  not  so  intimately  blended  with  the  transaction  itself  as 
to  wholly  f)reclude  the  idea  that  the  party  was  seeking  to  make 
evidence  for  himself.^ 

In  reference  to  acts  or  declarations  forming  a  part  of  the  res 
gestae,  it  must  be  remembered  that  they  are  admissible  for  as  well 
as  against  a  party ;  hence  it  is  that  courts  have  exercised  extreme 
caution  not  to  admit  such  acts  or  declarations  as  arise  so  long 
after  the  transaction  to  which  they  relate,  that  an  opportunity 
is  given  for  deliberate  design  in  manufacturing  evidence ;  and 
the  fact  that  the  declaration  is  against  the  interest  of  the  person 
making  it  has  no  bearing  in  determining  the  question.  If  they 
are  fairly  detached  from  the  original  transaction  so  as  not  to  be  the 
siDontaneous  product  of  it,  they  are  no  part  of  the  res  gestae. 

It  is  not  possible  to  give  a  general  rule  applicable  to  all  cas'es. 
The  fluestiou  of  the  admissibility  of  such  evidence  must  necessarily 
depend  upon  the  peculiar  facts  and  circumstances  of  each  case, 
and  rests  largely  in  the  discretion  of  the  court.  Indeed,  there 
is  no  one  branch  of  the  law  of  evidence  that  calls  for  the  exercise 
of  a  keener  discretion,  or  more  sound  judginent,  than  this.     To 

"Babb    V.    Clemson,    10    S.    &    R.  And   see   Highlander   v.    Fluke,    5   id. 

(Penn.)   419;   Willies  v.  Farley.  3  C.  442. 

&  P.  395;  Guidry  v.  Grivot,  2  Mart.  '  Mitchum    v.    State,    11    Ga.    278  j 

(La.)   13;  Martin  v.  Reeves,  3  id.  22.  State  v.  Garrund,  5  Oreg.  216. 


Sec.  139.]  Res  Gestae.  ^4:1 

group  the  declaratioiis,  acts  and  circumstances  attendant  upon  tlie 
principal  tra^saction  and  determine  whether  they  are  natural  or 
artificial,  mala  fide  or  bona  fide,  is  a  matter  calling  into  exercise 
the  best  faculties  of  a  judicial  mind.     Instances  can  be.  given 
showing  when  such  evidence  has  been  received,  and  when  it  has 
been  rejected ;  but  they  furnish  no  test  for  another  case.     Yet  the 
real  test   generally    applicable  is   simply   whether   the   evidence 
sought  to  be  admitted  is  of  acts,  declarations  or  circumstances  so 
immediately  connected  with  the  fact  in  issue  as  to  be  a  part  of 
it,  and  whether  they  are  so  far  the  natural,  voluntary,  and  spon- 
taneous result  of  it,  and  are  so  intimately  connected  with  it  in 
point  of  time,  that  they  may  be  said  to  spring  from  it,  and  ex- 
plain the  real  nature,  character  or  extent  of  the  transaction  itself. 
It  is  not  essential  that  they  should  have  occurred  at  the  precise 
Hme  of  the  transaction  itself,  but  they  must  have  occurred  at  such 
a  time,  and  in  such  a  manner,  and  must  be  so  closely  allied  there- 
to, as  really  to  form  a  part  of  it."    The  rule  undoubtedly  is,  that 
to  constitute  declarations  a  part  of  the  res  gestae,  they  must  be 
made  at  the  time  when  the  act  was  done  to  which  they  relate  and 
which  they  are  considered  as  characterizing,  and  must  so  harmon- 
ize as  to  be  obviously^  a  part  of  the  transaction.'     Nor  must  they 
be  narratives  of  past  occurrences,  but  concomitant  with  the  prin- 
cipal act,  and  so  connected  with  it  as  to  be  regarded  as  the  result 
and  consequence,  or  as  a  part  of  the  act  itself,  and  presumed  to 
have  been  induced  by  the  motive  which  led  to  its  commission.* 
As  was  said  in  the  last  case  cited,  they  must  be  contemporaneous 
with  the  main  fact  to   which   they   relate.      In  fact  they  must 
directly  relate  to  the  transaction,  or  be  proved  as  so  intimately 
connected  witli  it  and  near  to  it  in  point  of  time,  that  it  is  mani- 

^Meek    v      Perry,     36    Miss.     190;  called  for  by  the  checks  had  been  paid 
Fifield    V.    Richardson,    34    Vt.    410;  in    settlement    or    not.       Reviere    v. 
Tompkins  v.   Reynolds,   17   Ala.    109;  Powell,  61  Ga.  30.     Generally  declar- 
Kearney    v     Fafrell,    28    Conn.    317;  ations    offered    merely    to    strengthen 
Rutland     v     Hathorn,    36    Ga.    380;  proof  of   the  existence   of  a   fact   are 
Rio-as  V    State,  6  Cald.    (Tenn.)    517.  not  admissible   as  a   part  of  the  res 
An  "entry  made  by  a  banker  or  mer-  gestae.     Corder  v.  Talbot,   14  W.  Va. 
chant  in  his  account  book,  at  the  time  277.  ,^  xt   ^-    oir> 
~  of  the  transaction,   and  in   the   pres-           ^  Moore  v.  Meacham,  10  N.  i--  ^10; 
ence  of  all  the  parties,  is  part  of  the  Enos  v.   Tuttle,   3   Conn.   2o0;    Rock- 
res  gestae;  and  the  book  is  admissible  well  v.  Taylor,  41  id.  o6. 
in  evidence   to   show   it,   and   to    cor-           *  People    v.    Davis,    56    N.    Y.    95; 
roborate  the  memory  of  witnesses.  So  Luby  v.  H.  R.  R-  Co.,  17  id.  131  j  ins. 
held,  in  an  action  on  a  check  where  Co.  v.  Mosley,  8  Wall.   (U.  S.)   40o. 
the    issue    was    whether    the    money 


442  1.VIDEXCE.  [Cliap.  14 

fest  that  tliej  emanate  from  and  constitute  a  component  part  of 
the  same.  In.  other  words,  the  relation  between  the  principal 
fact,  and  the  declarations  or  acts  sought  to  be  established  as  a 
part  of  the  res  gestae,  must  be  so  close  that  it  may  be  said  that  the 
declarations  or  acts  are  tlie  declarations  and  acts  of  the  transaction 
itself.^  Declarations  of  this  character  are  treated  as  so  nearly 
akin  to  the  principal  act  itself  and  so  essentially  a  part  of  it,  that 
the  character  of  the  person  making  them  cannot  be  inquired  into. 
Thus,  where  a  conductor  of  a  freight  train  rushes  to  a  brake- 
man  in  excitement  as  the  train  is  crossing  a  bridge  and  says,  "  My 
God !  go  back  and  see  if  you  can  find  Leach.  The  bridge  knocked 
him  off,"  this  statement  is  admissible  as  part  of  the  res  gestae. 
The  declarations  were  the  outgrowth  of  the  occurrence  and  the  in- 
stinctive and  natural  outburst  of  expression  explaining  what  had 
happened  to  Leach.®  Wliere  the  time  when  a  step  of  a  car  was  let 
down  was  in  issue  an  exclamation  of  the  plaintiff  after  she  fell, 
^'  Yes ;  let  the  step  down  after  I  fall,"  is  is  admissible  as  part  of 
the  i-es  gestae.  It  was  made  immediately  after  the  accident  with 
reference  to  the  cause  of  the  fall,  without  opportunity  for  pre- 
meditation.'' Statements  by  the  plaintiff  while  walking  home 
after  being  bitten  by  a  dog  are  not  part  of  the  res  gestae.^  State- 
ments of  the  driver  of  a  cab,  made  immediately  after  an  accident, 
that  it  was  his  fault,  are  purely  narrative  and  not  part  of  the  res 
gestae.^ 

"Miller,  J.,  in  Greenfield  v.  Peo-  crime,  his  statements  were  inadmissi- 

ple,  85  N.  Y.  75.  ble.     It   was   held   that   the   evidence 

°  Leach  v.  Oregon  Short  Line  K.  Co.,  was  of  the  res  gestae  and  was  eoni- 

(Utah,    1905,)    81   Pac.   90.  petent,    and    that    A.'s    infamy    had 

^Hutcheis    V.    Cedar    Pvapids   &   M.  nothing  to  do  tvith  it.     State  v.  Dell- 

C.  Ry.  Co.,    (Iowa,  1905),  103  N.  W.  wood,  33  La.  An.  1229.     Nor  is  it  of 

779.  any  consequence  that  the  party  mak- 

*  Austin    V.     Bartlett,     178     N.    Y.  ing  them   would   not   be   a   competent 

510,  70  N.  E.  R.  855.  witness  upon  the  trial. 

'  Springfield     Consol.     Ry.     Co.     v.  Thus  in  a   Missouri   case,   Brownell 

Puntenney,  200  111.  9,  65  N.  E.  R.  442.  v.    Pacific,    etc.,    R.    R.    Co.,    49    Mo. 

Thus,    where   A.    and    B.    were    joint-  239,     in     an    action     brought     by    a 

ly  indicted  for  stealing  a  hog,  upon  a  widow    for    damages    resulting  from 

severance    A.    was    convicted.      Upon  killing    her     husband,     it    was     held 

B.'s   trial,   he  offered   to   prove,   by  a  that      he      being      injured      and      al- 

competent    witness,    that    A.,    in    the  most    instantly    killed,     his    declara- 

presence   of  the  witness,  asked   B.  to  tions  as  to  the  manner  in  which  the 

go  with   A.   and  get  his  hog,  the  in-  accident    happened    were    proper    evi- 

ference    being   that    B.    supposed    the  dence  as  a  part  of  the  res  gestae ;  but 

hog  to  belong  to  A.     The  testimony  if   he   had   lingered   for   such   a   time 

was  rej^ted  on  the   ground  that,  A.  that    the    declarations     could     fairly 

having  been  convicted  of  an  infamous  have  been  said  to  have  been  detached 


Sec.  13l».] 


Ees  Gestae. 


443 


A  statement  by  a  party  injured  five  or  ten  minutes  after  lie 
lias  been  run  over  by  a  train  and  while  he  is  lyins;  on  the  STOund 


irom  the  accident,  they  would  not 
have  been  admissible,  ( Stiles  v.  Dan- 
ville, 4:2  Vt.  282, )  and  the  question  as 
to  whether  such  a  space  of  time  has 
elapsed,  is  one  which  depends  en- 
tirely upon  the  circumstances  of  each 
ease,  and  whether  a  sufficient  time 
had  elapsed,  during  ivhich  the  per- 
son making  them  was  conscious,  so 
that  an  opportunity  for  fabricating  a 
declaration  has  existed.  But  the 
doctrine  of  this  case  has  been 
seriously  questioned,  and  Henry, 
J.,  in  Adams  v.  Hannibal,  etc., 
R.  R.  Co.,  74  Mo.  553,  says  of  it,  that 
*'it  has  ncA-er  been  satisfactory  to  the 
bar  or  bench  of  this  state;"  and  in 
the  case  last  cited,  a  declaration  made 
by  trainmen  immediately  after  the 
accident,  "if  you  had  stopped  the 
train  when  I  told  you,  you  would  not 
have  killed  him,"  was  held  inadmissi- 
ble, Henry,  J.,  saying:  "But  few 
questions  of  more  difficulty  are  sub- 
mitted for  determination,  than  those 
in  regard  to  the  admissibility  of 
statements  as  part  of  the  res  gestae. 
The  general  principles  on  the  sub- 
ject are  well  settled,  and  if  they  had 
been  uniformly  adhered  to  in  the  ad- 
judicated cases,  the  conflict  in  the  de- 
cisions would  have  been  avoided.  The 
declarations  of  an  agent  arc  admissi- 
ble as  evidence  against  his  principal, 
only  when  made  while  transacting 
the  business  of  the  principal  and  as 
a  part  of  the  transaction  which  is 
the  subject  of  inquiry  in  the  suit  in 
which  they  are  offered.  They  are 
then  admitted  as  'verbal  acts,'  and 
part  of  the  res  gestae.  What  he  may 
have  said  before  the  transaction  is 
entered  into,  or  after  its  completion, 
as  explanatory,  is  no  more  admissi- 
ble than  if  made  by  a  stranger.  Ladd 
V.  Couzins,  35  Mo.  516;  McDermott  v. 
H.  &  St.  Jo.  R.  R.  Co.,  73  Mo.  516; 
39  Am.  Rep.  526.  .Anything  in  the 
nature  of  narrative  is  to  be  careful- 
ly excluded.  Bacon  v.  Charlton,  7 
Cush.  (Mass.)  586."  And  in  Lund  v. 
Tyngsborough,  9  id.  42,  the  same 
court  said :  "There  must  be  a  main 
or  principal  fa<3t,  or  transaction,  and 
only  such  declarations  are  admissible 
as    grow    out   of    the    principal    tran- 


saction, illustrate  its  character,  are 
contemporary  with  it,  and  derive  some 
degree  of  credit  from  it."  In  Lubv 
V.  Hudson  R.  R.  R.  Co.,  17  N.  Y.  133, 
the  Court  of  Appeals  observes:  "The 
declarations  of  an  agent  or  servant 
do  not  in  general  bind  the  principal. 
Where  his  act  will  bind,  his  state- 
ments and  admissions,  respecting  the 
subject-matter  of  those  acts,  will 
also  bind  the  principal,  if  made  at 
the  same  time  and  so  that  they  con- 
stitute a  part  of  the  res  gestae.  To 
be  admissible,  they  must  be  in  the 
nature  of  original,  and  not  of  hear- 
sa}'  evidence;  thej'  must  .constitute 
the  fact  to  be  jjroved,  and  must  not 
be  the  mere  admission  of  some  other 
fact.  They  must  be  made  not  only 
during  the  continuance  of  the  agency, 
but  in  regard  to  a  transaction  de- 
pending at  the  very  time."  These 
general  principles  are  recognized  by 
all  the  cases  on  the  subject,  and 
the  conflict  between  them  has  arisen 
in  the  application  of  the  principles 
to  the  facts  of  the  particular  case. 
"The  observations  above  quoted 
from  the  opinion  of  the  Xew  York 
Court  of  Appeals  were  made  in  a 
case  strongly  resembling  the  case  at 
bar.  The  defendant  was  sued  for 
negligently  running  a  railroad  car, 
drawn  by  horses,  against  the  plain- 
tiff", in  one  of  the  streets  of  the  city 
of  Xew  York.  A  police  officer  was  al- 
lowed to  testify  that  he  arrested  the 
driver  directly  after  the  accident,  the 
citizens  having  stopped  the  car,  and 
the  driver  having  got  outside  the 
crowd  which  had  gathered,  and  on 
being  arrested  assigned  as  a  reason 
why  he  did  not  "Stop  the  car  that  the 
brakes  were  out  of  order.  The  Court 
of  Appeals  held  it  error  to  admit  the 
testimony,  and  observed  that  "the  al- 
leged wrong  was  complete,  and  the 
driver  when  he  made  the  statement 
was  only  endeavoring  to  account  for 
what  he  had  done.  He  was  mani- 
festly excusing  himself  and  throwing 
the  blame  on  his  principal."  Here 
the  servant  who  remarked  to  his  fel- 
low-servant:  "If  you  had  stopped 
the  train  when  1  told  you,  you  would 
not   have   killed   him,"   was   only   en« 


444 


Evidence. 


[Ghap.  14 


where  lie  fell  is  admissible  as  part  of  the  res  gestae.     The  court 
sav  that  "  it  was  a  spontaneous  and  impulsive  statement  of  fact, 


deavoring  to  exculpate  himself  and 
throw  the  blame  on  his  fellow-ser- 
vant, and  neither  his  remark  nor  the 
reply  to  it  by  the  other  was  made  in 
the  '  prosecution  of  the  business  of 
their  employer,  nor  did  they  immedi- 
ately precede  or  accompany  the  act 
which  led  to  the  catastrophe,  or  con- 
stitute any  part  of  that  act,  but  if 
admissible'  at  all,  would  only  go  to 
show  another  fact,  and  were  not  of 
themselves  facts  to  be  proved  as 
"verbal  acts."  They  were  only  in- 
tended to   prove   another   fact. 

"The  cases  of  Insurance  Co.  v.  Mos- 
ler,  8  Wall.  (U.  S.  397;  Comm.  v. 
McPike,  3  Cush.  (Mass.)  181,  and 
Brownell  v.  Mo.  Pac.  R'y  Co.,  47  Mo. 
243,  relied  upon  by  respondent's 
counsel,  were  not  cases  in  which  the 
declarations  of  agents  were  intro- 
duced as  evidence,  but  the  declara- 
tions offered  and  received  were  made 
by  the  persons  injured,  or  bv  per- 
sons laboring  under  some  disease, 
and  the  statements  related  to  the 
cause  of,  or  to  the  persons  who  had 
inflicted  the  injury,  or  to  the  symp- 
toms and  suffering  of  the  invalid.  It 
may  be  observed  in  the  case  of  the 
Insurance  Co.  v.  Mosley  that  Mr. 
Justice  Clifford  delivered  a  very 
able  dissenting  opinion,  concurred  in 
by  Justice  Nelson.  The  case  of 
Comm.  V.  ilcPike  has  by  more  re- 
cent decisions  of  the  Supreme  Court 
of  Massachusetts  been  questioned 
and  qualified,  if  not  overruled.  See 
cases  supra.  And  the  case  of  Brown- 
ell V.  Pac.  R'y  Co.  has  never  been  sat- 
isfactory to  the  bar  or  bench  of  this 
state.  The  case  of  Comm.  v.  Hack- 
ett,  2  Allen  137,  is  distinguishable 
from  Brownell  v.  Pac.  R'y  Co.,  and 
Comm.  V.  McPike,  ante.  The  facts 
of  that  case  were  that  Gillen  was 
stabbed  in  the  night-time  by  one  who 
immediately  ran  away,  and  the  evi- 
dence offered  was  that  Gillen  at  the 
moment  he  was  stabbed  cried  out: 
"I'm  stabbed,"  and  a  witness  for  the 
commonwealth  testified  that  he  heard 
the  exclamation  and  at  once  went  to 
Gillen  and  reached  him  within  twenty 
seconds  after  the  exclamation,  and 
was  asked:    "When  you  got  to  Gil- 


len, what  did  he  say?"  His  answer 
was:  'He  said,  I'm  stabbed;  I'm  gone; 
Dan  Hackett  has  stabbed  me.'  "  The 
Supreme  Court  said:  "If  it  was  a 
narrative  statement  wholly  uncon- 
nected with  any  transaction  or  prin- 
cipal fact,  it  would  be  clearly  inad- 
missible. But  such  was  not  its  char- 
acter. It  was  uttered  immediately 
after  the  alleged  homicidal  act,  in 
the  presence  of  a  person  who  was 
present  when  the  mortal  stroke  was 
given,  who  heard  the  first  words  ut- 
tered by  the  deceased,  and  icho  icent 
to  him  after  so  brief  an  interval  of 
time  that  the  declaration  or  exclama- 
tion of  the  deceased  may  fairly  be 
deemed  a  part  of  the  same  sentence 
as  that  which  followed  instantly  after 
the  stab  witli  the  knife  was  inflicted.'' 
That  portion  of  the  opinion  which  we 
have  italicized  indicates  the  precise 
ground  upon  which  the  evidence  was 
held  admissible. 

"Strictly  applying  the  principles 
above  announced,  and  "it  is  danger- 
ous to  open  the  door  to  the  declara- 
tions of  agents  beyond  what  the  cases 
have  already  done,"  was  the  evidence 
offered  in  the  case  at  bar  admissible? 
Were  the  declarations  connected  with 
the  calamity  as  a  cause  or  concom- 
itant? Were  they  contemporaiy  with 
the  principal  transaction  and  il- 
lustrative of  its  character,  or  merely 
a  subsequent  narrative  of  how  it 
occurred,  or  an  explanation  of  how 
it  might  have  been  avoided?  If  the 
latter,  as  we  think,  they  were  wholly 
inadmissible,  and  the  court  erred  in 
permitting  the  evidence  to  go  to  the 
juiy- 

"Tt  is  not  to  be  denied  that 
some  of  tlie  authorities  cited  by 
respondent's  counsel,  and  others  not 
cited,  sustain  his  position.  With  few 
exceptions  they  are  not  cases  how- 
ever in  which  the  question  of  agency 
is  involved,  but  cases  in  which  the 
declarations  offered  were  those  of 
persons  injured,  as  to  the  causes  of, 
or  to  the  persons  who  inflicted  the 
injuries,  and  while  there  may  be  cir- 
cumstances which  would  warrant  a 
less  rigorous  application  of  the  prin- 
ciple, in  such  cases  we  are  satisfied 


Sec.  139.] 


Ees  Gestae. 


445 


while  tlie  boy  was  suffering  intense  and  excruciating  pain  and 
under  the  excitement  of  the  accident,  where  tlie  natural  prompt- 


that  a  strict  adherence  to  principle 
is  the  better  course  when  it  is  sought 
to  charge  a  master  for  the  acts  of  his 
servant;  and  where  there  is  such  con- 
flict of  authority  on  a  subject,  we  are 
inclined-  to  be  guided  by  principle 
rather  than  follow  adjudications 
which  have  departed  from  it,  in  the 
apparent  necessity  for  a  departure  m 
a  given  case.  If  in  the  present  in» 
stance  the  train  could  have  been 
stopped  after  deceased  was  discov- 
ered on  the  trestle  by  defendant's 
servants,  that  fact  can  be  proved  by 
legitimate  testimony.  The  servants 
who  made  the  declarations  offered  in 
evidence  are  competent  witnesses  for 
plaintiff  to  prove  that  her  husband 
was  seen  on  the  trestle  by  the  ser- 
vants managing  the  train,  and  that 
the  train  could  have  been  stopped  be- 
fore it  reached  him.  It  is  no  answer 
to  this  that  plaintiff  could  not  rely 
upon  them  because  they  were  in  de- 
fendant's employment.  We  are  not  to 
assume,  in  order  to  admit  incompe- 
tent evidence,  that  the  only  person 
to  whom  the  fact  to  be  proved  is 
known  would  commit  perjury.  If 
plaintiff  cannot  prove  by  competent 
testimony  a  fact  essential  to  her  re- 
covery, we  cannot  establish  a  rule  in 
her  favor,  which  in  a  hundred  other 
cases  would  probably  lead  to  mani- 
fest  injustice. 

But  in  O'Connor  v.  Chicago.  Mil- 
waukee &  St.  Paul  R.  R.  Co., 
27  Minn.  16fi.  it  was  held  that  in 
case  of  an  accident  by  a  railroad  train 
running  upon  and  injuring  horses  on 
the  track,  what  was  said  by  the  en- 
gineer to  the  conductor  of  the  train 
immediately  after  the  accident  and 
after  the  train  had  stopped,  and  ichile 
they  were  examining  to  ascertain 
ivhat  mischief  had  been  done,  indi- 
cating where  he  first  saw  the  horses 
on  the  tract,  there  not  appearing  any- 
thing but  the  occurrence  to  cause  or 
procure  the  statement,  may  be  proved 
by  the  plaintiff  as  part  of  the  res 
gestae.  The  court  said:  "To  make 
declarations  of  an  agent  evidence 
against  his  principal  they  must  not 
only  have  been  made  while  he  was  en- 


gaged in  the  business  of  the  principal, 
but  they  must  be  a  part  of  the  trans- 
action' out  of  which  the  controversy 
arises.  It  is  not  enough  that  they  re- 
fer to  or  narrate  the  transaction  af- 
ter it  is  past;  they  must  be  so  con- 
nected in  time  and  circumstances 
with  the  principal  fact  as  to  be  a  part 
of  it.  When  declarations  of '  an 
agent  or  of  a  party  himself  are 
so  closely  connected  with  the 
principal  fact  as  to  be  a  part 
of  the  res  gestae,  is  often  a  very  nice 
question  to  determine.  There  are  on. 
the  point  many  decisions  which  ap- 
pear difficult  to  reconcile  with  each 
other."  This  ruling  is  supported  by 
the  following  cases:  Where  the  ac- 
tion was  for  injury  from  a  train  of 
cars  running  over  plaintiff's  wagon 
and  horses,  driven  by  his  servant,  it 
was  held  the  defendant  might  prove 
a  conversation  with  the  servant  at 
the  time  of  the  accident  and  relative 
to  it.  T.  &  W.  Ry.  Co.  v.  Goddard, 
25  Ind.  185.  In  an  action  against  a 
railroad  company  for  damages, 
caused  by  delay  in  the  carriage  of 
cattle,  the  statements  relating  to  the 
delay  of  the  conductor,  made  while 
he  had  control  of  the  train  in  which 
the  cattle  were,  were  held  part  of 
the  res  gestae.  Sisson  v.  C.  &  T.  R. 
Co.,  14  Mich.  489.  In  an  action 
against  a  railroad  company  for 
wrongful  expulsion  from  one  of  its 
trains,  a  conversation  had  immedi- 
ately after  the  expulsion,  and-  serv- 
ing to  illustrate  its  character,  be- 
tween plaintiff  and  the  offending 
brakeman,  was  held  part  of  the  res 
gestae.  Bass  v.  C.  &  N.  W.  Rv.  Co., 
42  Wis.  6.54,  S.  C.  24  Am.  Rep.  437. 
The  accident  being  the  running  of  .a 
railroad  train  against  a  peddler's 
wagon,  and  the  destruction  of  his 
goods,  the  trial  coUrt  admitted  evi- 
dence of  what  was  said  at  the  time 
of  the  accident,  by  the  engineer  in 
charge  of  the  train,  as  to  negligence 
in  running  it.  This  was  held  no  er- 
ror by  the  Supreme  Court,  which 
said:  "We  cannot  say  that  the 
declaration  of  the  engineer  was  no 
part  of  the  res  gestae.     It  was  made 


44G 


Evidence. 


[Chap.  14 


)v  a 


ing  would  be  to  speak  the  trntli.""^     But  declarations  made     ^ 
plaintiff  while  lying  on  the  ground  one  minute  after  his  leg  had 


at  the  time  of  the  accident,  in  view 
of  the  goods  strewn  along  the  road  by 
the  breaking  of  the  boxes,  and  seems 
to    have   grown .  directly    out    of    and 
immediately    after    the    happening    of 
the  fact.     The  negligence  complained 
of   being    that    of    the    engineer    him- 
self, we  cannot  say  that  his  declara- 
tions   made    upon    the    spot    at    the 
time,  and  in  view  of  the  efTects  of  his 
conduct,  are  not  evidence  against  the 
company  as  a  part  of  the  very  trans- 
action 'itself."     Hanover    R.    Co.    v. 
Coyle,  55  Penn.  St.  396.       In  John- 
son V.  State,  05  Ga.   94,  on  trial  of 
J.  for  assault  with  intent  to  murder 
F.,  F.'s  exclamation,  '"Oh,  Julia."  ut- 
tered,  though   half   unconsciously,   so 
soon   as   she,    F.,    was    found    on    the 
day   of    the    assault,    at   the    moment 
of    the    restoration    of    sensibility, — 
was    held    to    be    part    of    the    res 
gestae.     In  an  action  for  injuries  to 
a    person    by    being    thrown    into    a 
ditch,  evidence  of  what  he  said  while 
being  helped  out  was  held  not  to  be 
a  part  of  the   res  gestae,  but   an  ac- 
count of  a  past  transaction.     Cleveland 
R.  R.  Co.  V.  :Mara,  20  Ohio  St.  185.  So 
in  another  case  fifteen    minutes.  Jack- 
son V.  State.  52    Ala.  305,  thirty  min- 
utes, Denton  v.  State,  1    Swan  ( Tenn. ) 
279;   Kinnard  v.   Burton,  25  Me.   39, 
two    hours,    Rutherford    v.    Com.,    13 
Bush    (Ky.)    008,  two  days.  State  v. 
Dominique.     80     Mo.     585,    one    day, 
State  V.  Ware,  62  Mo.  597;   Fourday 
&   Harmon  v.  State,  3  Tex.  App.   51, 
between    the    happening   of    an    event 
and    the    declaration,    was    held    too 
long  to  admit  of  it  being  regarded  as 
a    part    of    the    res    gestae.       Thus, 
in    an    action     for    being    run     over 
at    a     railroad     crossing,    statements 
made  by  the  plaintiff's  driver  a  half 
hour  after  the  accident,  as  to  the  rea- 
son he  did  not  see  the  train,  were  held 
not  to  be  a   part  of  the   res   gestae. 
Pittsburgh,  etc.,  R.  R.  Co.  v.  ^y right, 
80  Ind.   182.     In  an  action  against  a 
railroad    company    for    injuries    from 
tlie  blowing  of  the  whistle  frightening 
the    plaintiff's    horse,    what    he    said 
soon  aftericar(h  as  to  the  engineer's 
shaking  his  fist  at  him,  was  held  not 


to  be  part  of  the  res  gestae.  So  als'o, 
as  to  what  the  engineer  said  on  ar- 
riving at  the  next  station,  indicating 
malice.  Newsom  v.  Georgia  R.  R. 
Co.,  06  Ga.  57.  A  remark  by  the  en- 
gineer of  the  train  which  ran  over 
plaintiff,  made  in  plaintiff's  presence 
two  or  three  hours  after  the  acci- 
dent, to  the  effect  that  he  did  not  sefr 
him  until  struck  by  the  locomotive,  i* 
not  admissible.  Travis  v.  Louisville 
&  Nashville  R.  R.  Co.,  9  Lea  (Tenn.) 
231.  Where  a  boy,  who  had  driven 
against  a  foot-passenger  on  the  street, 
immediately  stopped  his  horse,  and 
came  backhand  said  he  did  not  mean 
to.  held  a  part  of  the  res  gestae. 
Cleveland  v.  Xewsom,  45  Mich.  62. 
A  declaration  made  some  montlis  af- 
ter a  mine  was  located,  and  forming 
no  part  of  the  act  of  locatjon,  was 
held  inadmissible  as  part  of  the  res 
gestae.  Kramer  v.  Settle,  1  Idaho, 
N.  S.  485.  Admissions  of  a  con- 
ductor, made  some  days  after  a  passen- 
ger fell  off  from  his  train,  that  he 
kicked  him  off,  are  not  part  of  the 
res  gestae.  Moore  v.  Chicago,  St. 
Louis,  etc.,  R.  R.  Co.,  59  Miss.  243. 
But  from  five  to  ten  minutes  was  held 
not  to  be  such  a  lapse  of  time  as  would 
necessarily  prevent  it  from  being  so 
regarded,  O'Shiekls  v.  State,  55  Ga. 
696  :  but  in  another  case  a  declaration 
made  by  a  party  from  thiee  to  five 
minutes  after  an  assault  upon  him, 
was  held  too  remote,  State  v.  Pom- 
erov,  25  Kan.  349.  So  in  Hall  v. 
State,  48  Ga.  607,  a  declaration  made 
from  ten  to  twelve  minutes  after.  So 
in  a  Wisconsin  case,  Mutcher  v. 
Pierce,  57  Wis.  231;  35  Am.  Rep. 
776.  the  declarations  of  a  person  in- 
jured by  a  pistol  shot,  made  after  his 
wound  was  dressed,  and  he  had  taken 
his  seat  in  a  carriage  to  be  taken 
home,  were  held  not  to  be  admissible. 

1"  Dixon  v.  Northern  Pacific  Ry. 
Co.,   (Wash.,  1905),  79  Pac.  943. 

"All  declarations  or  exclama- 
tiens  uttered  by  the  parties  to  a 
transaction,  and'  which  are  contem- 
poraneous with  and  accompany  it,  and 
are  calculated  to  throw  lizht  upon 
the  motives  and  intention  of  tlic  war- 


Sec.  139.] 


Res  Gestae. 


447 


been  cut  off  by  a  railroad  train,  while  lie  'was  trying  to  steal  a 
ride>  as  to  the  cause  of  his  accident,  may  be  excluded  in  the  dis- 
cretion of  the  trial  judge,  as  they  may  not  have  been  spontaneous^ 
but  rather  an  attem^jt  to  shift  the  blame.^^  A  statement  by  a 
party  run  over  by  a  railroad  train  as  he  lay  on  the  ground  some 
one-half  hour  after  the  accident,  as  to  the  reason  why  he  attempted 
to  alight  from  the  moving  train,  is  not  admissible  as  part  of  the 
res  gestae}^  Where  a  switchman  is  run  over  and  some  four  or  five 
minutes  afterwards  says  that  he  desires  to  make  a  statement,  and 
he  waits  before  making  it  for  the  arrival  of  another  person,  the 
statement  then  made  Jacks  spontaneity  and  is  inadmissible  as 
part  of  the  res  gestae}^  Illustrations  of  this  character  migiit  be 
multiplied  indefinitely,  but  after  all,  they  would  afford  no  sure 
test  in  a  given  case,  as  to  what  is  in  fact  a  part  of  the  res  gestae. 
The  real  test  is,  whether  the  principal  act  and  the  declarations  or 
acts  are  detaclied  from  each  other  hij  such  a  lapse  of  time  as  to 
make  it  possible  for  the  jxirties  to  speak  or  act  from  deliberate  de- 
sign, rather  than  from  instinctive  impulse  or  the  natural  prompt- 
ings of  the  mind}^ 


ties  to  it,  are  clearly  admissible  as 
parts  of  the  res  gestae.  Very  re- 
spectable authorities  restrict  the 
doctrine  of  res  gestae  witliin  the  lim- 
its indicated  by  the  foregoing  defini- 
tion, and  exclude  all  declarations 
which  are  a  narrative  of  past  oc- 
currences. This  is  a  convenient 
and  salutary  rule,  and  probably 
the  more  logical  one.  Another 
rule  applied  in  many  of  the  Amer- 
ican courts  at  least,  is  to  admit 
as  parts  of  the  res  gestae  not  only 
such  declarations  as  accompany  the 
transaction,  but  also  such  as  are 
made  under  such  circumstances  as 
will  raise  a  reasonable  presumption 
that  they  are  the  spontaneous  ut- 
terance of  thoughts  created  by  or 
springing  out  of  the  transaction  it- 
self, and  so  soon  thereafter  as  to  ex- 
clude the  presumption  that  they  are 
the  result  of  premeditation  or  de- 
sign." So  statements  by  one  lying 
on  the  ground  just  after  he  had  been 
run  over  by  a  train  as  to  the  cause 
of  his  accident  are  admissible  as  part 
of  the  res  gestae.     International  and 


Great  Northern  Ry.  Co.  v.  Anderson 
82   Tex.  510,   17   S.  W.   1039,  27  Am^ 
St.    Rep.    902;    Murray   v.    Boston   & 
Maine   R.,   72   N.    H.   32,    54   A.    289 
291. 

"^  Pledger  v.  Chicago  B.  &  Q.  R 
R.  Co.,  (Neb.,  1903),  95  N.  W 
1057. 

"White  V.  Southern  Rv.  Co.,   (Ga 
1905),  51   S.  E.  411. 

"Atchison  T.  &  S.  F.  R.  Co.  v. 
Logan,  05  Kan.  748,  70  Pac.  878. 

"In  State  v.  Garrand,  5  Oregon^ 
210,  the  court  say  to  make  declara- 
tions a  part  of  the  res  gestae  they 
must  be  contemporaneous  with  the 
main  fact;  but,  in  order  to  be  con- 
temporaneous, they  are  not  required 
to  be  precisely  concurrent  in  time. 
If  the  declarations  spring  out  of  the 
transaction,  if  they  elucidate  it,  if 
they  are  voluntary  and  spontaneous, 
and  if  they  are  made  at  a  time  so 
near  to  it  as  reasonably  to  preclua«i 
the  idea  of  deliberate  design,  they 
are  then  to  be  regarded  as  contem- 
poraneous. 


44S 


Evidence. 


[Hiap.  14 


Sec.  140.  Acts  and  Statements  After  the  Principal  Fact. 

What  occurs  after  the  jivincipal  act  is  complete,  auJ  an  oppir- 
tuiiitv  for  fabricating  an  oxiilanation  ther.eof  has  set  in,  is  no  more 
a  part  of  the  res  gestae,  ahhough  it  occurs  within  a  very  few 
moments  after  the  act,  than  is  a  ck^chiration  nuule  several  days 
afterwanls.^  **  If  the  declarations  are  a  mere  uavvation  of  a  past 
occurrence,  they  are  not  admissible  as  /•c.s^  yesfae.  When  the  dec- 
larations are  not  precisely  concurrent  with  the  transaction,  a  deli- 
cate and  complex  question  is  presented  to  the  trial  judiiv  in  deter- 
mining their  admissibility,  and  each  case  must  be  decided  upon 
its  own  circumstances.  In  the  nature  of  the  case,  there  can  be  no 
hard  and  fast  rule  as  to  the  precise  time  near  an  occurrence  within 
which  declarations  explanatory  thereof  nmst  be  nuule,  in  order  to 
be  admis:>ible.  The  general  rule  is  that  the  declarations  must  be 
sul>stautially  coutenijx>raneons  with  the  litigated  transaction,  and 
be  the  instructive,  spontaneous  utterances  of  the  mind  while 
imder  the  active,  immediate  influences  of  the  transaction ;  the  cir- 
cumstances precluding  the  idea  that  the  utterances  are  the  result 
of  retlection  or  design  to  make  false  or  self-serving  declara- 
tions."'     But    in    an    action    for   the   purchase    price   of  certain 


^  Sorenson  v.  Dumla?.  42  \Vi>.  4(V2. 
That  litH-larations  niado  by  a  party 
after  the  transaction  is  ended,  or  an 
injury  is  received,  so  far  detached 
therefrom  in  point  of  time  as  to  ad- 
mit of  delil>erate  design,  or  as  to  be 
fairly  detached  from  the  transaction 
to  Nvhich  they  reh\te.  are  not  regard- 
ed as  a  part  of  the  res  gistae,  see 
Lane  v.  Brvant,  9  Grav  (Mass.)  245; 
Smith  V.  Webb.  1  Barb.  (X.  Y.)  230; 
McAdams  v.  Brand.  35  Ahr.  47S :  Os- 
borne V.  Robbins,  37  Barb.  (N.  Y.) 
4S1 ;- Simmons  v.  Macon,  etc..  R.  K. 
Co..  2S  Ga.  lU;  Nelson  v.  State,  2 
Swan  (Tenn.)  237:  Detroit,  etc..  R. 
R.  Co.  V.  Van  Steinberg.  17  Mich.  90; 
Com.  V.  Harwood,  4  Gray  (Mass.) 
41;  State  v.  Jackson.  17  Mo.  544: 
Wilson  V.  Sherlock.  30  Me.  295: 
Stewart  v.  Reddett.  3  Md.  67:  Cherry 
V.  McCall.  23  a.  193:  Carter  v. 
Buchanan.  3  id.  513;  People  v.  Gra- 
ham. 21  Cal.  261 ;  Lubv  v.  Hudson 
River  R.  R.  Co..  17  X.  Y.  131  :  Mon- 
day V.  State.  32  Ga.  672;  Matteson  v. 
X.'Y.,  etc..  K.  R.  Co..  35  X.  Y.  4S7; 
Kinnard  v.  Burton.  25  Me.  39:   Com. 


V.  McBike.  3  Cush.  (Mass.)  ISl; 
State  V.  Dominique.  30  Mo.  585.  In- 
deed, in  Friedman  v.  R.  R.  Co.,  7 
riiil.  (Penn.)  203.  it  was  held  ex- 
pressly that  even  the  dying  declara- 
tions of  the  deceased,  as  to  the  muse 
of  his  injuries,  could  only  be  given  in 
evidence  in  an  action  for  negligence. 
See.  also.  Marshall  v.  Chicago,  etc.. 
R.  R.  Co..  4S  111.  475. 

lu  Lambert  v.  The  People.  29  ^lich. 
71.  the  court  admitted  statements 
made  by  a  person  who  had  been 
robbed,  made  to  persons  coming  up 
to  him  within  three  minutes  after  the 
commission  of  the  crime,  as  a  part 
of  tiie  ro"  instac. 

But  if  such  a  time  had  elapsed  as 
to  detach  the  statements,  in  point  of 
time,  from  the  transaction  itself,  the 
evidence  would  not  have  been  ad- 
missible. Tluis.  in  Hamilton  v.  Peo- 
ple. 29  Mich.  171.  for  burning  a  barn, 
It  was  held  that  statements  made  by 
the  respondent  after  the  lire  were 
not    admissible. 

-State  v.  McDaniel,  OS  S.  C.  304, 
47   ^.   E.  3S4. 


Sec.  140.]  Res  Gestae.  449 

"  ditchers,"  where  the  buyers  denied  the  sale,  one  of  the  plaintiffs 
may  show  as  part  of  the  r<?«  fjafdm,  an  inquirv'  of  his  partner  as 
t/^  the  {\ri'drtrtvd]  ability  of  the  buyer,  made  two  hours  after  the  de- 
ff;ridants  had  ordered  the  "  ditchers,"  but  before  the  plaintiffs  had 
ordered  them  of  the  manufacturers.  "  Time  is  not  necessarily  a 
controlling  element  or  principle  in  the  matter  of  res  cjfMae,  and 
that  declarations  made  under  iiwvMini'XiiiinMr:  to  w^arrant  the  court 
in  presuming  that  they  grew  out  of  the  litigated  issue  and  illus- 
trate the  true  character  of  the  transaction,  and  were  dejiendent 
ujx^n  it,  were  not  desigrif^Jly  made  or  devised  for  a  self-serving 
purfxjse,  are  evidentiary  facts  and  are  not  within  the  general  rule 
applicable  to  hearsay  testimony."^  The  burden  is  upon  one  who 
seeks  to  introduce  hearsay  evidence  as  part  of  the  re«  (jcM.os  of  a 
transaction  to  show  that  it  is  in  fact  part  of  the  res  gestae,  so  a 
statement  by  a  husband  that  his  wife  complained,  "  immediately  " 
after  the  accident,  is  insufficient  as  the  word  immediately  is  too 
indefinite  acording  to  time.* 

^^7lere  one  is  shot  and  others  in  the  house  rush  to  his  assist- 
ance immediately  when  he  cries,  "  Charlie  has  shot  me  to  death," 
this  declaration  is  admissible  as  part  of  the  res  gestae.  Under  the 
circumstances  the  declarant  could  not  have  formed  a  delil>erate 
design  to  sjx^ak  falsely.''  A  statement  by  a  rnotorman  alighting 
from  his  car  on  striking  a  cow,  "  There,  that  is  running  without  a 
headlight,"  is  admissible  as  part  of  the  res  gestae!'  However, 
statements  by  a  conductor  of  a  train  immediately  after  he  has  put 
a  rnan  off  are  not  admissible  as  part  of  the  res  gestae?  So  state- 
ments made  by  a  conductor  of  a  train  immediately  after  an  acci- 
dent, may  be  excluded  as  not  being  part  of  the  res  gest(ie,  and  not 
being  within  the  scope  of  the  conductor's  authority,*  and  on  the 
other  hand  a  statement  by  an  engineer  immediately  after  an  acci- 
dent may  be  admissible  as  part  of  the  res  gestae? 

In  an  action  for  damage  claimed  to  have  been  caused  by  a  fire 
set  by  the  defendant's  harvesting  engine  a  statement  of  the  de- 

'Conrm  V.   Brodbnrj',  3   Idaho  770,  Co.,  126  Mo.    14.3,  28  S.  W.  86<5,  47 

3.5  Pac.  71.5,  95  Am.  State  Rep.  37.  Am.  St.  Rep.  646. 

*Pool    V.     Warren     County,     (Ga.,  'Nelson   v.  Geor^a   C.  &  X.   Rail- 

190.5 »,  .51  S.  E.  .328.  way,    120   S.   C.    312,   47    S.    E.    722; 

*  State  V.  Arnold,  47  S.  C.  9.  58  Am.  Redman  v.  Jfetropolitan  St    Rv.  Co., 

State  Rep.  867,  24  S.  E.  926.  185  Mo.  1,  84  S.  W.  26. 

''  Enslev  V.  Detroit  United  Ry.,  134  *  Hermes  v.  Chicago,  etc..  Rv.  Co., 

Mich.  195,  96  X.  \V.  34.  80   Wis.  .590,  50  X.  W.   584,  27  Am. 

^  Barker  v.  St.  Louis  I.  M.  &  S.  Rv.  St.  Rep.  69. 
29 


450  Evidence.  [Ciuap.  14 

fendant's  foreman  the  day  after  the  fire,  "  I  will  never  take  the 
engine  back  into  the  field,  unless  she  is  fixed  so  that  she  will  not 
throw  sparks,"  is  not  part  of  the  res  gestae.^^ 

Proximity  of  the  declaration  in  point  of  time  with  the  act  is  not 
of  itself  sufficient  to  make  it  part  of  the  res  gestae,  so  where  a  rail- 
road guard  slammed  a  door  on  the  plaintiff  and  on  her  protesting 
made  an  insulting  remark  to  her,  this  remark  is  not  admis- 
sible of  the  res  gestae,  as  it  was  not  connected  with 
the  act  of  shutting  the  door,  which  was  complete  before  the 
remark  was  made.^**  A  statement  of  a  driver  of  a  team,  made 
three  or  four  minutes  after  the  accident,  telling  how  the  accident 
happened,  is  not  admissible  as  part  of  the  res  gestae}^  Declara- 
tions made  by  a  railroad  foreman,  about  half  an  hour  after  an 
accident,  are  niot  part  of  the  res  gestae,  as  the  time  which  had 
elapsed  was  sufficient  to  convert  them  into  a  mere  narrative  of  a 
past  occurrence/^  A  statement  by  an  eye  witness  to  a  murder,  an 
hour  after  it  had  taken  place,  is  inadmissible  as  part  of  the  res 
gestae}^  and  a  statement  by  a  witness  at  the  coroner's  inquest  five 
and  one-half  hours  after  the  accident,  is  not  admissible  as  part  of 
the  res  gestae}^  But  declarations  in  a  trial  for  homicide,  made  by  a 
victim,  may  be  admissible  as  res  gestae  if  voluntary  and  spon- 
taneous, although  made  an  hour  after  the  crime,  where  they  are 
the  first  words  the  victim  has  spoken  since  the  crime/^ 

Statements  by  a  plaintiff  in  an  action  for  slander,  "  Why  did  he 
tell  such  an  awful  lie  ?  It  is  worse  than  death.  My  good  name  is 
all  I  have,"  are  not  admissible  as  evidence  of  the  plaintiff's  feel- 
ings at  the  time,  but  are  mere  statements  of  a  past  occurrence.^^ 
A  statement  by  a  fellow-servant  of  an  injured  employee,  after  the 
accident,  as  to  the  cauee  of  the  injury  is  inadmissible.^^  State- 
ments made  by  a  railroad  telegraph  operator  immediately  after  an 
accident   are   not   admissible  as   ]»«rt   of   the  re«   gestae}^   Also, 

9a  Quint  v.   Dumond,    (Cal.,   1905),  Western   Rv.    Co.,    109   Iowa    628,   80 

82  P.  310.  K  W.  682,' 77  Am.  St.  Rep.  557. 

'"Butler  V.  Manhattan  Rv.  Co.,  143  '^  Lewis  v.  State,  29  Tex.  App.  201. 

N.  Y.  417,  38  N.  E.  454,  42  Am.  St.  15  S.  W.  642,  25  Am.  St.  Rep.  720. 

Rep.   738.  '"Kidder  v.  Bacon.   74  Vt.   263,  52 

"  Barnes  v.  Rumford,  96  Maine  315,  A.   322. 

52  A.   844.  'Hvamp  v.  Coxe  Bro.s.  &  Co.,   (Wis., 

''Briggs  V.   East   Broad  Top   R.   &  1904).   99    N.   W.   266. 

Coal  Co.,  206  Penn.  564,  56  A.  36.  '^Tiborsky  v.  Chicago,  M.  &  St.  P. 

"  Elder  V.  State.  69  Ark.  648.  65  S.  Rv.    Co.,     (Wis.,    1905),    102    N.    W. 

W.  938,  86  Am.   St.  Rep.  220.  549. 

"Purcell     V.      Chicago     &      North 


Sec.  140.]  Res  Gestae.  451 

iji  an  action  against  a  saloon  keeper  under  a  statute  for  caus- 
ing the  death  of  a  patron  by  selling  him  liquor,  the  statements  of 
tlie  deceased  while  on  the  road  from  the  saloon  as  to  where  he  ob- 
tained the  whiskey  then  in  his  possession  are  not  part  of  the  res 
gestae}^  A  statement  by  a  conductor  of  a  street  car  after  he  had 
gone  from  the  place  where  the  car  stopped  to  the  place  of  the  acci- 
dent where  tlie  2>laintiff  lay  and  had  again  returned  to  the  car,  is 
not  admissible  as  part  of  the  res  gestae}^  So,  too,  the  res  gestae 
generally  remains  with  the  locus  in  quo  and  does  not  follow  the 
parties  after  the  'principal  act  is  complete}^  Where  an  engineer  of 
a  railroad  train  runs  his  train  back  to  the  scene  of  the  accident  im- 
mediately after  a  collision  with  a  wagon,  his  conversation  with  a 
bystander  on  reaching  the  scene  of  the  collision  is  inadmissible  as 
part  of  the  res  gestae.  Declarations  of  strangers  in  order  to  be 
admissible  should  be  in  the  nature  of  verbal  acts  illustrative  and 
as  a  part  of  the  transactions  in  question.^^  Thus,  if  a  party  is 
injured  by  reason  of  a  defect  in  a  highway,  declarations  made  by 
him  at  the  place  of  the  injury,  immediately  upon  the  happening 
of  the  accident,  are  a  part  of  the  res  gestae ;  but  after  the  party- 
has  gone  away  from  the  locus  in  quo,  however  soon  after  the  in- 
jury, his  declarations  cease  to  be  a  part  of  the  res  gestae,  so  far 
as  the  cause  of  the  accident  is  concerned.  In  the  Wisconsin  case,^^ 
cited  in  the  last  note,  statements  made  by  the  driver  of  the  car- 
riage, after  he  returned  to  the  stable  with  the  horses  and  car- 
riage, as  to  the  cause  of  the  injury,  were  held  not  admissible,  the 
court  saying :  ^'  The  res  gestae  of  tliis  accident  did  not  go  with  the 
team  to  the  livery  stable,  but  remained  in  the  locus  in  quo  with 
the  injured  woman;  and  tlie  declarations  of  the  driver  to  the 
liveryman  were  a  subsequent  narrative  of  the  res  gestae."  In 
another  Wisconsin  case,"^  which  was  an  action  for  personal  in- 
juries resulting  from  a  pistol  shot  wound  inflicted  upon  the  plain- 
tiff's minor  son,  it  was  held  that  declarations  made  by  the  son 
after  his  wound  was'  dressed,  and  he  had  been  placed  in  a  carriage 

'*  Horst    V.    Lewis,     (Neb.,     1905),  gone    two    hundred    yards    from    the 

103  N.  W.  460.  place   of  shooting,   that   it   was   acci- 

-"  Boone    v.    Oakland    Transit    Co.,  dental,  was  held  not  to  be  a  part  of 

139  Cal.  490,  73  Pac.  243.  the  res  gestae. 

"Prideaux  v.  Mineral  Point,  43  Wis.  ^^  Gosa  v.   Southern  Kailway,  67  S 

513.    In   State  v.   Seymour,   1   Houst.  C.   347,  45  S.  E.   810. 
Cr.    Cas.     (Del.)     508,    a    declaration  -^  Prideaux  v.  Mineral   Point,   ante. 

made  by  the  respondent  after  he  had  "Matcher     v.   Pierce,  49  Wis.  231. 


452  Evidence.  [Chap.  14 

to  be  taken  home,  as  to  the  cause  of  the  injury,  were  not  admissi- 
ble a8  a  part  of  the  res  gestae.  In  a  New  York  case,^"  however, 
such  declarations  as  to  the  nature  of  the  injury,  and  its  extent, 
made  by  the  injured  person,  were  held  to  be  admissible  where  the 
injury  resulted  from  his  being  thrown  from  a  sleigh  in  conse- 
quence of  a  defect  in  a  highway,  after  he  had  got  back  into  the 
sleigh  again.  But  the  distinction  between  these  cases  is,  that  in 
the  one  case  the  declarations  related  to  the  cause  of  the  injury, 
while  in  tlie  other  they  related  to  the  nature  of  the  person's  in- 
jury, which  with  him  was  a  present  and  continuing  fact.^® 

Sec.  141.  Declarations  of  Conspirators,  when  Evidence  Against 
Co-conspirators. 

A  well-known  example  of  evidence  admissible  as  part  of  the 
res  gestae  is  supplied  in  the  instance  of  prosecutions  which  in- 
volve a  charge  of  conspiracy.  It  is  an  established  rule,  that  where 
several  persons  are  proved  to  have  combined  together  for  the  same 
illegal  purpose,  any  act  done  by  one  of  the  party  in  pursuance  of 
the  original  concerted  plan,  and  witli  reference  to  the  common 
object,  is,  in  tlie  contemplation  of  the  law,  the  act  of  the  whole 
party  ;^  it  follows,  therefore,  that  any  writings  or  verbal  expres- 
sions, being  acts  in  themselves,  or  accompanying  and  explaining 
other  acts,  and  so  being  of  the  res  gestae,  and  which  are  brought 
home  to  one  conspirator,  are  evidence  against  the  other  conspira- 
tors, provided  it  sufficiently  appears  that  they  were  used  in  the 
furtherance  of  a  common  design.^      So  in  a  civil  case.^ 

25  Powers    V.    West    Troy,    25    Hun  which  justify  the  inference  of  a  con- 

/■Kj    Y  1    561  '                       "  spiracy,  the  acts   and  declarations  of 

''Declarations  made  to  a  physician  each    conspirator    made    pursuant    to 

of   bodily    feelinos    and   svmptonis   of  and  in  furtherance  of  the  conspiracy 

preo-nancy  at  the  time  of  'examination  are    competent    evidence    against    all. 

are^admissible  as  a  part  of  the  facts  It   matters  not   in   either   case,   when 

on  which   hi-*  opinion  is  based.     But  one  enters  into  or  becomes  a  party  to 

other    unconnected    assertions    in    the  tlie  conspiracy,  how  prominent  or  m- 

=ame  conversation   charging  a  person  conspicuous   a   part   he   may   take   in 

with  criminal  acts,  to  procure  a  mis-  the   execution    of    the   unlawful    pur- 

carriacre     are    not    admissible.      State  pose    or    the    use    of    the    unlavvful 

V    Gedlcke    43  N.  J.  L.  86.  means;   he  is  responsible  to  the  full- 

'  1  Charo-e'  of  Bayley,  J.,  in  Watson's  est    extent   for    all    that    precedes    as 

rase    3'?'' How    St    Tr.  7.      See,  also,  well    as   all    that    follows    in    connec- 

Brandre"th's    Case,    32    How.    St.    Tr.  tion  ^vith  the  plot,  whether     done  by 

854    857:   R.   v.   Salter,   5   Esp.    125;  himself  or  by  one  or  more  of  his  as- 

R    y    Cope,  1  Stark.  144.  sociates.      The    only    limitation    upon 

■=The   conspiraev   being   once   estab-  the    rule    is    that    what    is    said    and 

lished    or  facts  liaving  been  adduced  done    must    be    said    and    done    after 


Sec.  141.] 


Res  Gestae. 


453 


Declarations  of  conspirators  and  their  employees  are  aamissi- 
ble  when  made  dnring  the  pendency  of  the  conspiracy  and  ger- 
mane to  it/  ahhough  the  dechirations  are  mere  narratives  of  the 
pLin  and  are  not  in  furtherance  of  it,^  and  although  the  declara- 
tions are  of  those  not  parties  to  the  record,*^  and  a  letter  written  by 
one  of  the  conspirators  may  be  admitted,  although'  it  is  not  shown 
which  one  of  the  conspirators  wrote  the  letter.' 

The  common  design  need  not  be  first  shown  before  the  state- 
ments or  declarations  made  by  one  of  them,  in  the  absence  of  the 
others,  can  be  given  in  evidence  against  the  others,  but  may  be 
furnished  at  a  later  stage  of  the  trial,  and  the  conduct,  acts  and 
declarations  of  the  separate  parties  in  the  planning  or  execution 
of  the  scheme  may  be  shown  as  evidence  of  the  common  design.^ 
And  the  common  design  having  been  proved,  the  declaration  of 
one  of  the  parties  may  be  shown  in  evidence  against  them  all.^ 


the  formation  of  the  conspiracy,  and 
in  furtherance  and  in  pursuance 
thereof.  Of  course,  what  may  be  said 
or  done  by  any  one  of  the  conspira- 
tors, after  the  completion  of  the  pur- 
pose for  which  the  conspiracy  was 
formed,  can  be  used  only  against  the 
one  saying  or  doing  it.  Standard  Oil 
Co.  V.  Dovle,  (Ky.,  1904),  82  S.  W. 
271.  Hardy's  Case,  24  How.  St.  Tr. 
704.  What  the  effect  of  such  evi- 
dence will  be,  must  depend  upon  a 
variety  of  circumstances;  as,  whether 
the  prisoner  was  attending  to  the  con- 
verastion ;  whether  he  approved  or 
disapproved.'  By  Eyre,  C.  J.,  ib.; 
Cuyler  v.  McCartney,  33  Barb.  165, 
171. 

» Miller  v.  John,  208  HI.  173,  70  N. 
E.   R.  27. 

*Lane  v.  Bailey,  29  Mont.  548,  75 
Pac.    191. 

'Conn.  Mut.  Life  Ins.  Co.  v.  Hill- 
mon,  188  U.  S.  208,  218,  23  S.  Ct. 
294. 

"Clune  V.  United  States,  159  U.  S. 
590,  16  S.  Ct.  125.  Telegrams  sent 
by  parties  outside  the  state  giving 
directions  as  to  a  conspiracy  to  in- 
terfere with  the  United  States  mails. 

"Ramsey  v.  Flowers,  72  Ark.  316, 
80  S.  W.  147;  Cohn  vs.  Laidel,  71  N. 
H.  558,  53  A.  800;  contra,  The  Peo- 
ple V.  Parish,  4  Denio  153;  William- 
son V.  Commonwealth,  4  Gratt.  (Va.) 
547. 


estate  V.  Simmons,  4  Strobh.  (S. 
C.)  2G6;  Regina  v.  Mears,  1  Eng. 
Law  &  Eq.  581;  State  v.  Ripley,  31 
Me.  386. 

'Glory  v.  State,  13  Ark.  236.  It 
makes  no  difference  that  the  person 
who  utters  the  declaration  is  not  a 
party  to  the  suit  which  draws  the 
conspiracy  in  question.  Claylor  v. 
Anthony,  0  Rand.  (Va.)  285.  On  an 
information  in  the  nature  of  a  quo  ivav' 
ranto,  to  avoid  the  election  of  usurp- 
ing vestrymen  in  a  religious  corpora- 
tion, whose  election  was  objected  to 
as  being  procured  by  preconcerted 
tumult  and  violence,  various  conver- 
sations in  respect  to  the  election 
among  the  corporators,  at  their  meet- 
ing, and  at  meetings  of  certain  mem- 
bers of  the  congregation,  and  at 
meetings  of  certain  voluntary  soci- 
eties, were  received  in  evidence  in 
behalf  of  the  commonwealth.  And 
held,  that  it  was  properly  put  to  the 
jury  whether  what  they  had  heard 
was  relevant,  and  ought  to  have  any 
influence  as  b"eing  connected  with  tha 
election.  Com.  v.  Woolser,  3  S.  &  R. 
(Penn.)  29,  31.  In  case  of  a  fraudu- 
lent combination  to  extort  money  by 
several  persons,  which  probably  con- 
tinued on  foot  down  to  the  time  of 
the  trial,  it  was  held  that  the  declara- 
tion of  one,  being  part  of  the  res 
gestae,  were  admissible  to  afl'ect  the 
others.       Apthorpe     v.     Comstock,     2 


454 


Evidence. 


[C^ap.  14 


The  declarations  of  joint  wnrongdoers,  when  received  to  affect 
others,  are  not  always  confined  to  the  narrou^  gi-oimd  of  the  res 


Paige  Ch.  (N.  Y.)  482,  488.  Tlie 
plaintiff,  C,  holding  a  bill  of  sale  of 
personal  property,  subject  to  the 
levy  of  an  execution,  the  debtors  in 
the  execution,  who  had  given  the  bill 
of  sale  to  the  plaintiflf.  conspired  with 
>'^.  to  procure  a  sheriff's  sale,  in  the 
plaintiff's  absence,  so  as  to  prevent 
his  redeeming  the  property;  and  it 
was  sold  at  auction  to  M.  In  trover 
by  C.  against  certain  persons  who 
claimed  title  through  M..  the  declara- 
tions of  one  of  the  debtors  and  M., 
made  about  the  time  of  the  auction, 
were  held  admissible  against  the  de- 
fendants, as  part  of  the  res  gestae. 
Crarv  v.  Sprague,  12  Wend.  (N.  Y.) 
41.  See' Willies  v.  Farley,  3  C.  &  P., 
395,  where  a  vendor  in  possession 
after  sale  may,  by  his  declarations, 
affect  his  vendee  on  the  ground  of  the 
res   gestae. 

Where  a  sheriff  is  sued  for  taking 
property,  and  he  defends  on  the 
ground  \hat  plaintiff's  title  is  derived 
through  a  fraudulent  assignment,  the 
declarations  of  third  persons  not  par- 
ties to  the  action  cannot  be  proved 
without  showing  that  they  and  the 
plaintiff  acted  on  a  common  purpose 
to  defraud  creditors.  Jones  v.  Hurl- 
burt,  39  Barb.   (N.  Y.)   403. 

In  an  early  English  case.  R.  v. 
Stone.  6  T.  R.  527,  the  prisoner  was 
indicted  for  treason,  and  was  charged 
with  conspiring,  together  with  a  per- 
son of  the  name  of  Jackson,  to  col- 
lect and  communicate  intelligence  to 
the  French  government.  After  evi- 
dence had  been  given  of  a  conspiracy 
for  this  purpose,  a  letter  written  by 
Jackson,  containing  treasonable  in- 
formation, and  which  had  been  inter- 
cepted, was  received  in  evidence 
against   the    prisoner. 

Upon  the  same  principle,  in  an- 
other case,  Hardy's  Case,  24  How.  St. 
Tr.  704.  (The  scruple  of  Eyre,  C.  J., 
in  consequence  of  the  letter  never  hav- 
ing reached  its  destination,  does  not 
appear  to  have  any  weight) .  a  letter 
written  by  the  chairman  of  a  meet- 
ing in  London  to  a  delegate  sent  by 
that  meeting  into  Scotland,  was  re- 
ceived in  evidence;  the  letter  con- 
taining  encouragement   to   that   dele- 


gate to  proceed  in  the  cause  in  which 
he  had  been  engaged  by  the  direction 
of  the  meeting  in  London ;    and  that 
meeting     being     composed,     amongst 
others,  of  the  prisoner,  the  writer  of 
the  letter,  and  the  person  to  whom  it 
was   adddressed.      In    the   same    case, 
evidence  was  admitted  to   prove  that 
Tlielwell    (who  was  a   member  of  the 
Corresponding  Society  with   the  pris- 
oner)   had  brought  a  paper  with  him 
to    a    printer,    and    desired    him    to 
print  it;    the   paper  being   considered 
as   evidence  to   prove  a   circumstance 
in  the  conspiracy.     On  the  same  trial 
numerous  letters  were  read  which  had 
been    written    by    co-conspirators    in 
furtherance    of    the    common    object, 
and    tracts    and    other    writings    dis- 
tributed   bj'    them    were    received    in 
evidence;   being  fn  the  nature  of  ver- 
bal    acts,     for     which     the     prisoner, 
though   not   personally    present   when 
they    were    spoken,    written    or    pub- 
lished,   was    nevertheless    responsible. 
In  like  manner,  consultations  in  fur- 
therance  of   a   conspiracy  are   receiv- 
able   in   evidence,    as    also   letters   or 
drafts    of     answers    to     letters,     and 
other  papers  found  in  the  possession 
of     co-conspirators,     and     which     the 
jury  may  not   unreasonably  conclude 
were    written    in     prosecution    of    a 
common   purpose    to   which    the   pris- 
oner   was    a     party,    Lord    Russell's. 
Case,  9  How.  St.  Td.  578.     In  a  later 
case,    (Home  Tooke's   Case,   25   How. 
St.   Tr.   220.     And   see   the   point  re- 
specting   letters    found    in    the    pos- 
session   of    co-conspirators    in    Wat- 
son's  Case,     infra),    the   draft   of    a 
letter  intended  to  have  been   sent  by 
Hardy,    as    secretary     to     the    Corre- 
sponding   Society,    in    answer    to    an- 
other letter,  and  which  was  found  in 
Hardy's     possession,     was     admitted. 
And  in  the  same  trial,  another  letter 
was  admitted,  which  was   written  by 
the  secretary  of  a  society  at  Sheffield, 
and    was    addressed    to    the    prisoner, 
but    was    found    in    Telwall's    posses- 
sion.    For   the  same   reason,   declara- 
tions or  writings  explanatory   of  the 
nature  of  a  common  object,  in  which 
the     prisoner     is     engaged,     together 
with    others,    are    receivable    in    evi- 


Sec.  143.]  Res  Gestae.  455 

gestae.  In  most  instances,  the  common  object  being  first  proved, 
and  the  wrong  done,  admissions  by  one  made  long  after  the  in- 
jury is  complete,  may  be  received  to  affect  the  otliers. 

Sec.    142.  Statements   of   Conspirators,   w^hen   not  Part  of  the 
Res  Gestae. 

But  where  words  or  writings  are  not  acts  in  themselves,  nor 
part  of  the  res  gestae,  but  a  mere  relation  or  narrative  of  some 
part  of  the  transaction,  or  as  to  the  share  which  other  persons  have 
had  ini  the  execution  of  a  common  design,  the  evidence  is  not 
within  the  principle  above  mentioned;  it  altogether  depends  on 
the  credit  of  the  narrator,  who  is  not  before  the  court,  and  there- 
fore it  cannot  be  received.  So  declarations  by  a  conspirator  after 
the  object  of  the  conspiracy  is  accomplished,  are  inadmissible 
against  a  co-conspirator.^ 

Sec.    143.  Writings    in   Possession    of    Conspirators   Before    or 
After  Apprehension. 

It  is  in  consequence  of  the  distinction  between  writings  or  dec- 
larations which  are  a  part  of  the  transaction,  and  such  as  are  in 
the  nature  of  subsequent  statements,  but  not  part  of  the  res  gestae, 

dence;   provided  they  accompany  acts  and    the    writer    were    proved    to    be 

done   in    the   prosecution    of   such    an  members.     The  argument  in  favor  of 

object,  arising  naturally  out  of  these  the    admission    of    the    evidence    was, 

acts,  and  not  being  in  the  nature  of  that   the    letter   was   an   act   done   in 

a  subsequent  statement  or  confession  furtherance  of  the  conspiracy;      that 

of  them.     Upon  this  principle  the  ex-  the   letter   contained   language'  of   in- 

pressions   of  the  mob   in  the   Sachev-  citement,    not   merly   a    narrative    or 

erell  riots,  that  they  designed  to  pull  confession  by  a  stranger,  and  that  in 

down    the    meeting-houses,    Avere    ad-  such  case  "  scribere  est  agere."     The 

mitted  in  evidence.     15  How.   St.  Tr.  objection    was,    that    the    letter    con- 

^^2.  tained     merely     a     relation     by     the 

'State  V.  Rice,  49  S.  C.  418,  27   S.  writer,   that   certain   songs   had   been 

E.  452,  61  Am.  St.  Eep.  816.  •  sung,    which    could    not    be    evidence 

Thus,  on  the  trial  of  Hardy  for  against  the  admissibility  of  the  let- 
high  treason,  Hardy's  Case,  24  How.  ter.  "  Correspondence,'*'  said  Eyre 
St.  Tr.  452,  475.  See  32  How.  St.  C.  J.,  "very  often  makes  a  part  of 
Tr.  351;  a  question  arose  as  to  the  the  transaction,  and  in  that  case  the 
admissibility  of '  a  letter  written  by  correspondence  of  one  who  is  a 
Thelwell,  and  sent  to  a  third  person  party  in  a  conspiracy  would  un- 
not  connected  with  the  conspiracy,  doubtedly  be  evidence,  that  is,  a  cor- 
containing  seditious  songs,  which  the  respondence  in  furtherance  of  the 
letter  stated  to  have  been  composed  plot;  but  a  correspondence  of  a  pri- 
and  sung  at  the  anniversary  meeting  vate  nature,  a  mere  relation  of  what 
of  tlie  London  Corresponding  So-  had  been  done,  appears  a  difl'erent 
ciety,   of  which   society   the   prisoner  thing." 


45G  Evidence.  [C'lui]).  14: 

that  the  admissibility  of  writings  often  depends  on  the  time  when 
they  are  proved  to  have  been  in  the  possession  of  co-conspirators ; 
whether  it  was  before  or  after  the  time  of  the  prisoner's  appre- 
hension. Thus,  on  the  trial  of  Watson/  some  papers,  containing 
a  variety  of  plans  and  lists  of  names,  which  had  been  found  in 
the  honse  of  a  co-conspirator,  and  which  had  a  reference  to  the 
design  of  the  conspiracy,  and  in  furtlierance  of  the  alleged  plot, 
were  held  to  be  admissible  evidence  against  the  prisoner.  All  the 
judges  were  of  opinion  that  these  papers  ought  to  be  received; 
inasmuch  as  there  was  in  the  case  strong  presumptive  evidence 
that  they  were  in  the  house  of  the  co-conspirator  before  the  pris- 
oner's aj)prehension ;  for  the  room  in  which  the  papers  were 
found  had  been  locked  uj)  by  one  of  the  conspirators.  And  the 
judges  distingTiished  the  point  in  this  case  from  a  point  cited 
from  Hardy's  case,  where  the  papers  were  found,  after  the  pris- 
oner's apprehension,  in  the  possession  of  persons  who,  possibly, 
might  not  have  obtained  the  papers  until  afterwards. 

The  principles  upon  which  evidence  of  the  description  above 
mentioned  is  'admitted,  are  equally  applicable  to  the  trial  of  civil 
injuries,  in  the  commission  of  which  different  defend'ants  have 
concurred."  But  evidence  of  this  description  is  inadmissible  in 
actions  where  no  common  motives  or  object  can  be  imputed,  as  in 
actions  for  negligence  f  at  least  it  ought  not  to  affect  co-defend- 
ants where  such  a  consequence  can  be  avoided.  And  the  prin- 
ciple upon  which  the  declarations  of  associates  are  admitted  in 
civil  actions  not  less  than  in  proceedings  upon  criminal  charges, 
only  applies  where  such  declarations  are  strictly  a  part  of  the 
transaction  in  question. 

MYatson's   Case,  2   Stark.    140.  432;   Xorth   v.    Miles,    1    Camp.    389; 

*  Powell    V.    Hodgetts,    2    C.    &    P.      Bowsher  v.   Cally   1   Camp.   391. 

^Daniels  v.  Potter  M.  &  M.  501. 


CHAPTER  XV. 

Testimony  Taken  in  Formek  Trial. 
Section  144.  In  general. 

Sec.  144.  In  General. 

Testimony  taken  in  a  previous  case  in  another  court  involving 
the  same  issues  between  the  same  parties  is  competent  where 
the  witness  is  dead  and  may  be  shown  by  the  past  testimony  of 
one  who  heard  the  witness  testify  in  the  first  suit.^  The  testimony 
of  a  witness  at  a  previous  trial  is  also  admissible  on  proof  of  per- 
manent absence  from  the  State ;  mere  absence  from  the  State  is 
insufficient,^  and  such  testimony  may  be  proved  on  showing  that 
the  witness  is  permanently  absent  from  the  State  and,  that  his 
whereabouts  is  unknown,  even  though  the  party  had  made  no  ef- 
forts to  ascertain  his  Avhereabouts  or  procure  his  attendance.^ 
Such  evidence  is  also  admissible  in  case  of  insanity  and  where  the 
witness  is  kept  aw^ay  by  the  other  party,  but  only  in  case  there 
was  a  full  opportunity  to  cross-examine  the  witness  in  the  first 
trial  when  the  testimony  there  taken  is  admissible,^  although  the 
former  trial  was  not  concluded.^  The  rule  does  not  admit  a 
statement  which  was  immediately  stricken  out,  so  that  the  other 
side  had  no  opportunity  to  explain  it  or  to  cross-examine  as  to  it.*^ 

^  Persons  v.   Smith  et  al.,   12  N.  D.  script    of    his    evidence    at    a    former 

403,  97   N.   W.   551;    Lange  v.   Klatt,  trial.     Southern    Ry.    Co.    v.    Bonner 

135  Mich.  262,  97  N.  W.  70S.  (Ala.,    104),   37   So.   702.        Where   a 

"State   V.    Banks,    100   La".    480,    31  witness  is  out  of  the  jurisdiction  his 

So.    53.     Evidence    of    the    testimony  testimony    taken    at    a    former    trial 

of  a  witness  at  a  former  trial  can  be  inay  be  admitted.      Atchison,  Topeka 

given    in    Alabama    only    where    the  &  Santa  Fe  R.  R.  v.  Osborn,  64  Kan. 

witness    has    left    the   State    perma-  187.  67  P.  547,  91  Am.  St.   Rep.   189 

nently  or  for  such  an  indefinite  time  and  note,  page   192. 

that  his  return   is   contingent  or  un-  ^  ]McGovern  v.  Smith,  75  Vt.  104,  53 

certain.     It   has   been   held   that   evi-  A.  326. 

dence  of  a  witness  that  he  had  seen  *  U.  S.  v.  Macomb,  5  McLean,  286. 

a    witness    who    had    testified    in    a  ^  Taft  v.  Little,  178  N.  Y.   127,  591, 

former  trial  three  or  four  months  be-  70  N.  E.  R.  121. 

fore  in  Texas  and  he  said  he  was  liv-  °  Young    v.    Valentine,    177    N.    Y. 

ing  in  Texas  is  insufiicient  as  a  pre-  347,  69  N.  E,  R.  643, 
dicate  to  the  admission   of  the  tran- 

(457) 


45S  Evidence.  [Chap.  15 

Where  the  deposition  of  a  witness  has  been  taken  and  is  in  court 
evidence  of  his  testimony  on  a  former  trial  is  admissible  even 
though  in  the  deposition  he  forgets  matters  to  which  he  testified 
on  the  former  trial.  When  failure  of  memory  amounts  to  men- 
tal imbecility,  a  witness  is  as  one  dead  or  insane  and  as  his  testi- 
mony cannot  then  be  taken  his  testimony  on  a  former  trial  of  the 
same  issue,  between  the  same  parties,  may  be  resorted  to  but  not 
in  this  case.^  The  mere  substance  of  the  previous  testimony  is 
usually  sufficient  without  giving  the  exact  words,^  but  even  a 
stenographic  report  of  the  testimony  is  inadmissible  without  proof 
of  its  genuineness  and  correctness.^  The  official  stenographer  who 
took  notes  of  a  former  trial,  which  he  has  translated  and  written 
out  may  testify  as  to  the  accuracy  of  the  translation  and  thus 
render  it  admissible  in  evidence.^**  Depositions  taken  at  a  cor- 
oner's inquest  are  mere  ex  parte  statements  and  incompetent  ex- 
cept for  purposes  of  contradiction.^^ 

^  Stein  V.    Swensen,   46   Minn..  360,  550,  70  K  E.  R.  1066;  Cox  v.  Royal 

4  N.  W.  55,  24  Am.   St.  Rep.  234.  Tribe  of  St.  Joseph,  42  Ore.   365,   71 

*  United  States  v.  Macomb,  5  Mc-  Pac.  73.  Certified  notes  taken  by  a 
Lean  (U.  S.  Cir.  Ct. ),  286;  Lime  coroner  of  testimony  given  before 
Rock  Bank  v.  Hewett,  52  Me.  531;  him  are  not  admissible  in  another 
Clealand  v    Huey,  18  Ala.  343.  proceeding    unless    their    authenticity 

*  Barksdale  v.  Security  Ins.  Co.,  was  duly  established  by  the  oath  of 
120  Ga.  388,  47  S.  E.  943.  the   coroner,    where   such    notes    were 

'"Smith    V.    Scully,    66    Kan.  139,  not    taken    under    statutory    require- 

265,  71  Pac.  249.  ment.  Edwards  v.  Grimbel,  202  Penn. 

"  Knights     Templar     Masons'  Life  30,  51  A.  357. 

Indemnity   Co.   v.    Crayton,    209  111. 


CHAPTER  XVI. 

Admissions. 


Section  145.  Admissions  of  parties  to  a  suit. 

146  Whole  admission    must  be  taken  together. 

147  Weitrht  to  be  given  to  admissions  or  declarations. _ 
us!  Where  and  how  a  party  may  discredit  his  admissions. 

149.  Parties  to  negotiable  paper  generally. 

150.  Admissions  by  an-indorser. 

151.  Admissions  made  by  a  former  owner  of  a  note. 
152    Admissions  of  persons  acting  together  illegally. 

^^'i    Afhni^sions  bv  co-plaintiffs  or  co-defendants.  ,   ,      .    .         . 

Ill:  idmiLlons    o'f    on'e   of  two  or  more  persons  united  in  interest. 

155.  Admissions  by  husband  or  wife. 

156.  Admissions  by  attorneys. 

157.  Declarations  and  admissions  of  agent.  ^^ 

tors,  etc. 

160.  Admissions    by    privies. 

161.  Rule  applicable  in  cases  of  personalty. 

162.  Principal  and  surety. 

163.  Offers  of  compromise. 

164    How   admissions  should  be    weighed. 

165.  Admissions  implied  from  conduct. 

166.  Admissions  from  acquiescence. 
167    Conclusive  admissions. 

168.  Etlect  of  plea  of  general  issue,  etc. 

169.  Omission  to  traverse. 

1?;-  S^SSTcWupon  by  others  to  their  prejudioe. 

179     Aflniissions  under  oath  m  deeds,  etc. 

\]i.  idmissions  by  corporate  officers  and  agents. 

Sec   145.  Admissions  of  Parties  to  a  Suit. 

Admissions  a.e  not,   ^<;^:^l  :T:o^rZ^ 
substitute  for  -'d-^f  ,*f  ^^  ™*;„t     L'^     Thus  the  deposi- 

redl^Sras  an  ad.issW     T..  .eeo.d  o    a  eo^^  J 
i-ratenfrr  *:CtalX"i"dLssihle  in  evidence 

1  Profile    &    ^1™    H*3tel'    Co.    v. 
Bickford,  72  N.  H.  73,  54  A.  699.     ^^^^^ 


4G0  Evidence.  [Chap.  16 

upon  the  ground  that  it  contains  admissions  of  the  beneficiary 
against  his  interest  as  to  the  cause  of  death,  but  the  coroner's  in- 
quest is  not  admissible  when  attached  to  proofs  furnished  by  the 
company's  agent.^  The  admissions  or  statements  of  a  litigant 
against  his  interest  made  out  of  court  or  upon  a  fonuer  trial, 
relating  to  a  material  matter,  may  be  proved  without  laying  the 
foundation  required  for  impeaching  a  disinterested  witness  by 
calling  the  admission  to  his  attention  while  on  the  stand,^  Where 
a  suit  is  brought  in  behalf  of  an  infant,  his  declarations  against 
interest  are  admissible  in  evidence  against  him,  even  although 
his  testimony  is  inadmissible,  as  he  does  not  appreciate  the  nature 
of  auj  oath.^  Where  a  party  seeks  to  establish  that  his  opponent 
in  a  previous  trial  put  forth  a  different  claim  it  is  permissible 
to  prove  not  only  that  he  himself  averred  it  in  testimony,  but  also 
that  he  procured  others  to  support  him.  Affidavits  or  statements 
of  third  persons  used  by  a  party  are  evidence  against  him  in  a 
subsequent  controversy  on  the  ground  of  admissions.^  A  state- 
ment made  by  a  defendant  in  an  action  for  personal  injuries  to 
the  effect  that  he  considered  himself  responsible  for  the  action 
which  is  the  subject  of  the  suit  is  competent  evidence  against  him, 
even  though  it  is  a  statement  of  an  opinion,  to  oppose  later  con- 
tradictory testimony  at  the  trial  of  the  case.® 

It  is  a  well  settled  rule  of  evidence  that  the  admissions  of  a 
party  are  admissible  as  evidence  against  him,  but  not  in  his 
favor,''  except  when  they  form  a  part  of  the  res  gestae,  or  where, 

-  Cox  V.   Roval  Tribe  of  Joseph,  42  qiiiesced   in   another   line.      Evarts   v, 

Ore.  365,  71  Pac.  73.  Young,   52   Vt.    329;   Martin    v.    Wil 

'Churchill    v.    White,    58    Xeb.    22,  liams,     18     Ala.      190;      Kennedy    v 

78  N.  W.  369,  76  Am.  St.  Rep.  64.  Meedor,   1    S.  &  P.    (Ala.)    220;   Gor 

*  Atchison,   etc.,   R.   R.   Co.   v.   Pot-  don  v.  Clapp,  38  Ala.  357;   Hazen  v 

ter.  60  Kan.  808,  58  P.  471,  72  Am.  Henry,   6   Ark.   86;   Rice   v.   Cunning 

St.  Rep.  385.  Contra.  Knights  Temp-  ham,  29   Cal,  492;   North   Stonington 

lar  &  Masons'  Life  Indemnity  Co.  v.  v.    Stonington,   31    Conn.   412;   Heard 

Crayton,    209   111.    550,   70    N.    E.   R.  v.    McKee,    26    Ga.    332;      Scobey     v. 

1066.  Armington,     5     Ind.    514;   Murray   v. 

^  Bageard  v.   Consolidated   Traction  Cone,  26   Iowa,  276 ;   Wright  v.   Had- 

Co.,  64   N.   J.   L.   316,   45  A.   620,   81  dock,   7   Dana    (Ky.),  253;   Talbot  v. 

Am.  St.  Rep.  498.  Talbot,  2  J.  J.  Mar.   (Ky.)   3;  Tipper 

°  Shinkle    v.    McCullough,    116    Ky.  v.   Commonwealth,   1  Mete.    (Ky.)    6; 

960,  77  S.  W.  196.  Tucker  v.   Hood,  2  Bush.    (Ky.),  85; 

'Jacob   V.    Shorey.   46   N.    H.    100;  Handley   v.   Call,   30   Me.   8;      Hogan 

Magee   v.   Raiguel,   64   Penn.   St.    110.  v.    Hendry,    18   Md.    177;      Carter   v. 

The  declarations  of  a  party  in  inter-  Gregory,  8  Pick.   (Mass.)    165;  Jacobs 

est    are    not   admissible   to    show   the  v.  Whitcomb,   10  Cush.    (Mass.)    255; 

location  of  a  disputed  line,  although  Nutting    v.    Page,    4    Gray     (Mass.), 

he   has   since   died,   but   they   are   ad-  581;      Emerson   v.   Lowell   Gas   Light 

missible   to    show    that   he    never    ac-  Co.,  0  Allen   (Mass.),  146;  Hogsett  v. 


Sec.  145.] 


Admissions. 


461 


altlioiT^h  against  his  interest,  they  nevertlieless  make  for  him 
upon  another  collateral  issue.  As  where  he  has  indorsed  a  pay- 
ment upon  a.  note  or  other  obligation,  in  those  States  where  the 
debt  may  be  renewed  by  part  payment,  his  indorsement  of  a  pay- 
ment thereon  is  admissible  in  his  favor  to  repel  the  statute  of  limi- 
tations, provided  it  was  made  at  such  a  time  and  under  such  cir- 
cumstances as  to  repel  all  idea  of  it  having  been  made  for  the  pur- 
pose of  avoiding  the  statute.^  But  as  a  rule,  except  where  they 
go  to  establish  intention,^  such  admissions  are  only  admissible 
against  the  party  making  them.^°     If,  however,  they  accompanied 


Ellis,  17  Mich.  351;  Milliken  v. 
Greer,  5  Mo.  489;  Darrett  v.  Don- 
nelly, 38  Mo.  492;  Moore  v.  San- 
bourn,  42  Mo.  490;  Wiggin  v.  Plu- 
mer,  31  N.  H.  (11  Fost.)  251;  Judd 
V.  Brentwood,  46  N.  H.  430;  Smith 
V.  Kerr,  1  Barb.  (N.  Y.)  155;  State 
V.  Jefferson,  6  Ired.  (X.  C.)  L.  305; 
\Yhite  V.  Green,  5  Jones  (N.  C),  L. 
47;  Burridge  v.  Geauga  Bank, 
Wright  (Ohio),  688;  Graham  v. 
Hollinger,  46  Penn.  St.  55;  Williams 
V.  English,  64  Ga.  546. 

'Gibson   v.   Peebles,   2   McCord    (S. 
C),  418. 

» Young  V.  Power,  41  Miss.  197 ; 
Baker  v.  Kelly,  41  id.  606. 

"  Brown  v.  Brown,  5  Ala.  508 ; 
Blaum  V.  Beal,  5  id.  357 ;  James  v. 
Stockey,  1  Wash.  (U.  S.  C.  C.)  330; 
Freeborn  v.  Smith,  2  Wall.  (U.  S.) 
160;  Buswell  v.  Davis,  10  N.  H. 
413.  Declarations  of  a  third  party 
not  at  the  time  in  possession  of  the 
property,  unaccompanied  by  any  cor- 
respondni^r  act,  are  inadmissible. 
O'Brien  v.  Hilburn,  22  Tex.  016.  Evi- 
dence of  the  declarations  of  a  person 
who  is  competent  to  testify  in  the 
case  is  not  admissible.  Bank  of  Ala- 
bama V.  M'Dade,  4  Port.  (Ala.)  252; 
Field  V.  Suice,  7  Ark.  269;  Williams 
V.  Kelsey,  6  Ga.  365;  Compton  v. 
Fleming,  8  Blackl.  (Ind.)  153; 
Flynn  v.  Merchants'  Ins.  Co.,  17  La. 
Aiin.  135;  Brown  v.  Mooers,  6  Gray 
(Mass.),  451;  Fanny  v.  State,  6  Mo. 
121;  Langsdorf  v.  Field,  86  Mo.  440; 
Howell  V.  Howell,  37  Mo.  124;  Alex- 
ander V.  ;Mahon,  11  Johns.  (N.  Y.) 
185;  Woodward  v.  Paine,  15  id.  493; 
Rowland  v.  Rowland,  2  Ired.  (N.  C.) 
L.  61;  Persons  v.  Burdick,  6  Wis.  63. 
And  the  fact  that  a  person  is  dead  at 


the  time  of  a  trial,  who  if  aliv^ 
might  be  a  witness,  will  not  make 
his  writings  evidence  any  more  than 
his  unsworn  declarations  would  be. 
Crump  V.  Starke,  23  Ark.  131.  Nor 
is  the  fact  that  a  witness  was  taken 
sick  the  day  previous  to  the  trial  a 
circumstance  sufficient  to  warrant 
the  admission  of  his  declarations  on 
the  ground  of  necessity.  Gaither  v. 
Martin,  3  Md.  146.  'Xor  is  it  a 
good  reason  for  admitting  in  evi- 
dence the  declarations  of  a  third 
parson,  not  a  party  to  the  suit,  that 
such  person  cannot  be  examined  as  a 
witness.  Churchill  v.  Smith,  16  Vt. 
560.  The  declarat'ions  of  a  person 
exercising  authority  that  he  pos- 
sesses it  can  never  be  received  as  evi- 
dence of  the  fact  of  his  authority. 
James  v.  Stookey,  1  Wash.  330.  Nor 
can  parties  give  in  evidence  private 
conversations  or  correspondence  with 
each  other  to  rebut  evidence  of  part- 
nership with  a  third  person.  Free- 
born v.  Smith,  2  Wall.  (U.  S.)  160. 
In  detinue,  after  a  demand  and  re- 
fusal to  deliver  the  property  has 
been  proved  by  the  plaintiff,  the  de« 
fendant  may  show  that  his  refusal 
was  qualified,  but  cannot  be  allowed 
to  prove  his  own  declarations  at  the 
time  relative  to  his  title  to  the  prop- 
erty. Brown  v.  Brown,  5  Ala.  508. 
A  party's  answers  to  interrogatories, 
under  the  statute  in  aid  of  discover- 
ies in  common-law  suits,  if  his  adver- 
sary declines  to  read  them,  cannot 
be  considered  by  the  court  as  evi- 
dence for  him  for  any  purpose.  Wells 
V.  Bransford,  28  Ala.  200.  Nor  are 
the  declarations  of  the  defendant  in 
execution  admissible  in  favor  of  a 
claimant    of   the   property    levied   on. 


462 


Evidence. 


[Chap.  16 


the  transaction  in  dispute  and  were  a  part  of  the  res  gestae,^^  or 


nor  in  his  own  behalf,  unless  they 
form  a  part  of  a  conversation  proven 
by  tne  plaintiff  in  execution.  They 
are  admissible  in  favor  of  the  plain- 
tiff in  execution.  Brown  v.  Upton, 
12  Ga.  505.  In  a  Georgia  case,  two 
drovers  came  to  an  inn  together;  one 
of  them  told  the  negro  hostler  not 
to  tie  the  horses;  he  did,  however, 
tie  them,  and  the  horse  of  the  other 
drover  was  strangled.  In  an  action 
therefor  against  the  innkeeper,  the 
above  direction  was  admitted  in  evi- 
dence. Jones  V.  Hili;  26  Ga.  194. 
Gestures  are  treated  as  acted  lan- 
guage, and  are  no  more  admissible 
than  declarations  in  favor  of  the 
party  making  them.  Bowie  v.  Mad- 
dox,  29  Ga.  285.  In  an  action 
against  an  officer  for  an  escape  on 
mesne  process,  the  admissions  of  the 
defendant  in  the  original  suit  may 
be  proved  to  show  a  cause  of  action 
in  such  suit.  And  it  is  not  neces- 
sary that  such  admissions  should 
have  been  made  before  the  escape. 
Hart  V.  Stevenson,  25  Conn.  499. 
But  where  an  action  is  brought  by 
a  minor,  through  his  father  as  next 
friend,  the  father's  declarations  are 
not  admissible.  Hammer  v.  Pierce, 
5  Harr.  (Del.)  304.  As  a  general 
rule,  the  admissions  or  declarations 
of  a  person  not  a  party  to  the  record 
are  not  admissible  in  evidence  even 
in  the  absence  of  better  testimony. 
Ibbitson  v.  Brown,  5  Iowa,  532 ; 
Chastain  v.  Robinson,  30  Ga.  55 ; 
Berry  v.  Waring,  2  Har.  &  J.  (Md.) 
103;  Lyman  v.  Gipson,  18  Pick. 
( Mass. )  422  ;  Wesson  v.  Washburn 
Iron  Co.,  13  Allen  (Mass.),  95;  Bain 
V.  Clark,  39  Mo.  252;  Forsaith  v. 
Stickney,  16  N.  H.  575;  Jones  v. 
Doe,  2  111.  276;  McCormick  v.  Robb, 
24  Penn.  St.  44 ;  Kottwitz  v.  Bagby, 
16  Tex.  656.  Thus  the  declarations 
of  an  absent  subscribing  witness  to 
a  deed  are  admissible  to  show 
that  it  was  fraudulently  obtained. 
Shackelford  v.  Purket,  1  A.  K. 
Marsh.  (Ky. )  425.  And  the  rule  ad- 
mitting evidence  of  th*  declarations 
of  a  third  person,  made  in  the  pres- 
ence of  a  party  and  affecting  nis 
interest,  is  not  to  be  extended  to  in- 
clude declarations  made  before  sucln 
interest   was    acquired   or   known    by 


the  party  to  exist.  Ware  v.  Ware,  8 
Me.  42,  Declarations  of  one  who  is 
neither  a  party  to  the  record  nor  a 
witness  are  incompetent  for  the  pur- 
pose of  showing  that  he  is  the  real 
party  in  interest  to  the  action.  Kyan 
V.  Merriam,  4  Allen  (Mass.),  77. 
Evidence  obtained  by  means  of  a 
search  warrant  is  not  to  be  rejected 
either  upon  the  ground  that  it  is  in 
the  nature  of  admissions  made  under 
duress,  or  that  it  is  evidence  which 
the  defendant  has  been  compelled  to 
furnish  against  himself,  or  on  the 
ground  that  the  evidence  has  been 
unfairly  or  illegally  obtained,  even  if 
it  appears  that  the  search  warrant 
was  illegally  issued.  State  v.  Flvnn, 
36  N.  H.  64.  the  rule  is  inflexible 
that  one  man  cannot  be  bound  by  the 
admissions  of  another  unless  such  a 
relation  is  previously,  and  by  other 
evidence,  proved  to  exist  beticeen 
them  as  icill  enable  one  to  involve  the 
other  in  liabilities.  Faulkner  v. 
Whitaker,  15  N.  J.  L.  438;  Kilburn 
V.  Ritchie,  2  Cal.  145;  Atwell  v.  Mil- 
ler, 11  Md.  348;  Commonwealth  v. 
Oberle,  3  S.  &  R.  (Penn.),  9;  Hill 
V.  Myers,  43  Perni.  St.  170.  The  dec- 
larations of  parties  at  the  time  of  a 
transaction  are  usually  received  as 
evidence  as  part  of  the  res  gestae. 
But  the  declarations  of  one  of  the 
parties  at  another  time,  and  particu- 
larly in  the  absence  of  the  other,  are 
inadmissible,  Ogden  v.  Peters,  15 
Barb.  (N.  Y.)  560;  Deveries  v.  Phil- 
lips, 63  N.  C.  207 ;  Stauffer  v.  Young, 
39  Penn,  St,  455,  So,  the  declara- 
tions of  a  deceased  person,  between 
whom  and  the  person  sought  to  be 
affected  by  them  there  is  no  privity, 
are  not  admissible  unless  they  were 
against  his  pecuniary  interest  exist- 
ing at  the  time  of  the  facts  admit- 
ted, and  unless  the  latter  were  such 
that  he  may  be  presumed  to  have  had 
accurate  knowledge  of  them  at  tiie 
time.  Bird  v,  Hueston,  10  Ohio  St. 
418,  The  declaration  of  one  who 
cannot  be  sworn  as  a  witness  be- 
cause he  is  interested  or  infamous, 
cannot  be  received  in  evidence. 
Nettles  V.  Harrison,  2  M'Cord  (S. 
C),  230. 

"  Peppinger    v.    Law,    6    N,    J,    L, 
384;      Allen     v,     Duncan,     11      Pick. 


Sec.  145.]  Admissions.  463 

were  made  in  the  presence  of  the  other  party,  and  were  not  con- 
tradicted by  him/'  they  are  competent  evidence. 

But  whether  in  writing  or  by  parol,  they  cannot  as  a  rule  be 
used  as  evidence  in  his  favor.  Eveu  an  indorsement  of  part  pay- 
ment on  a  promissory  note  is  not  of  itself,  and  as  a  matter  of 
course,  admissible  to  take  the  note  out  of  the  Statute  of  Limita- 
tions.^^ So  of  a  credit  on  an  account  book,  the  credit  being  small 
in  proportion  to  the  account,  dated  after  six  years  have  run,  and 
apparently  made  with  a  view  to  elude  the  statute.^^  Admissions 
may  arise  in  any  kind  of  a  case  in  a  great  many  ways.  So  the  fail- 
ure of  a  party  to  explain  suspicious  circumstances  within  his 
knowledge  is  a  proper  subject  of  comment  and  weighs  against 
him.^^  A  settlement  by  a  railroad  with  one  party  for  damage 
from  a  fire  is  not  an  admission  of  liability  as  to  another  dam- 
aged by  the  same  fire.^*  In  an  action  against  an  employer  for 
personal  injuries  to  an  employe  his  report  to  an  accident  insur- 
ance company  on  the  accident  is  good  as  an  admission,  but  the 
fact  that  the  insurance  company  is  defending  the  action  is  not 
competent  evidence  of  negligence.^^  On  the  issue  of  the  value 
of  land  taken  by  eminent  domain  evidence  of  the  price  at  which 
the  plaintiff  gave  an  option  on  it  shortly  before  the  taking  in 
question  and  the  price  at  which  he  sold  it  shortly  afterwards  are 
admissible  in  evidence  against  him.^^  The  classification  of  prop- 
erty by  a  municipal  tax  board  is  admissible  in  evidence  against  the 
city  but  not  in  its  favor. ^^  Where  one  of  the  allegations  in  a  libel 
is  that  the  plaintiff  is  a  persistent  law  breaker,  testimony  of  a 
game  warden  that  the  plaintiff  attempted  to  bribe  him  is  admis- 
sible.^**     Evidence  of  the  payment  to  deceased  of  sick  benefits  by 

(Mass.)    308;     Sayre  v.  Durwood,  35  (Mass.)    110;      Roseboom   v.   Billing- 
Ala.  247;   Bayden  v.  Moore,  11   Pick.  ton,  17  Johns.   (N.  Y. )    182. 
(Mass.)   362;     Warden  v.  Powers,  37  "Taylor's    Ex'rs    v.     M'Donald      "> 
Vt.  619;  Holbrook  v.  Murray,  20  Vt.  M'Cord    (S.  C),  418. 
525.  ^^Kirby    v.    Tallmadge,    160    U.    S. 

^^^  Green  v.   Harris,  3  Ired.    (N.  C.)  379,  383,  16  S.  Ct.  349. 

L.    310;      Wilson   v.   Pope,   37    Barb.  '"  Creighton  v.   Chicago,   R.  I.  &  P. 

(N.  Y. )    321;     Johnson  v.  Brockway,  R.  Co.   (Neb.,  1903),  94  N.  W   5-^7 

23   Ark.   382 ;    Archer   v.   De   Duff,   5  "  Roche     v.     Llewellyn  *  Ironworks 

Barb.    (N.  Y.)    147;      Corser  v.  Paul,  Co.,  140  Cal.  563,  74  Pac.  147. 

41   N.   H.   24;      Bailey  v.   Woods,    18  ''Houston   v.   Western   Washint^ton 

N.  H.   28;      Alston   v.   Granthum,  26  R.  Co.,  204  Penn.  321,  54  A.  166.° 

Ga.  374;     Nusbaum  v.  Thompson,  11  'H'ity    of    Philadelphia    v.    Gowen 

Md.   557;   Bradford    v.    Hagerthy,    11  202  Penn.  453,  52  A.  3. 

Ala-   698.  ="  Davis  v.  Hamilton,  88  Minn.   64, 

"Whitney     v.     Bigelow,     4     Pick.  92  N.  W.  512,  515. 


464 


Evidence. 


[Chap.  10 


insurance  companies  is  evidence  as  an  admission  of  such  sick- 
ness, as  such  payments  are  made  only  on  demand.^^  In  an  ac- 
tion against  the  stockholders  of  a  bank  the  pass  books  of  deposit- 
ors are  admissible  to  show  the  indebtedness  of  the  bank  to  them.^^ 


"  Leidenspinncr  v.  Metropolitan 
life  ins.  Co.,  175  N.  Y.  95,  G7  N.  E. 
E.   123. 

"McGowan  v.  McDonald,  111  Cal. 
57,  43  P.  418,  52  Am.  St.  Rep.  149. 

It  was  said  in  an  early  New  York 
case,    Roseboom    v.    Billington,    ante, 
that     the     indorsement     would    have 
been  admissible  had  it  been  shown  to 
have   been   made   at   a   time   when   it 
was  against  the  interest  of  the  party 
who  made   it.     But  this   principle   of 
receiving  admissions  is  by  no  means 
universal,   nor   is   it   a   sufficient   rea- 
son  that   the   admission   is   made   be- 
fore    any     controversy     has     arisen. 
Thus,  in'an  action  for  goods  sold,  the 
defendant  .had  been  charged   as  trus- 
tee in  respect  to  the  debt  in  question 
as  due  to  a  third  person,  and  had  ad- 
mitted  this  to   be  so,   and   had  judg- 
ment against  him.     The  debt  was  in 
truth  due  to  the  plaintiff,  though  the 
question  was  a  doubtful  one  upon  the 
facts.     It  was  held,  that  the  defend- 
ant's  admissions   in   the   former    suit 
were   not  evidence  for   him.     Wise  v. 
Hilton,  4  Me.  425.     In  Minnesota,  by 
statute,    an    indorsement    of    a    pay- 
ment made  upon  a  note  by  the  payee, 
at  a  time  when  the  indorsement  was 
against   his  interest,   is   made   admis- 
sible as  evidence  of  the  fact  of  pay- 
ment.      Young  V.   Perkins,  29   Minn. 
173.     But  in   New  Y'ork  an  entry   in 
the  party's  books,  though  at  the  time 
against   him,    is    not    afterwards   evi- 
dence   for    him.        Thus,    in    another 
case,  on  a  note  payable  to  the  plain- 
tiff's testator,  against  five  persons  as 
makers,    one    question    was,    whether 
two    were    not     principals,    and    the 
other   three   sureties.     To    show   this, 
the    book    of    the    two    crediting    the 
note  as  their  own  to  the  testator  at 
its   date   was   offered   by   the   defend- 
ants.    Tliough  the  entry  was  against 
the   interest  of  the  two  at  the  time, 
yet  it  was  held  that  it  could  not  be 
used    in   their   favor,   or    in    favor   of 
their   co-defendants.  Schermerhorn 

V.  Schermerhorn  and  others,  1  Wend. 
(N.  Y.)    119.     So,  in  an  action  on  a 


note,    dated    14th    April,    1828,    com- 
menced by  attaching  the  goods  of  tlie 
maker,    Gregory,    on    the    same    day, 
Peck,  a  subsequent  attaching  creditor, 
was  allowed  to  defend  on  the  alleged 
ground  that   the   plaintiff''s   note   was 
a  fraud  on  creditors.     A  part  of  the 
consideration    of    the    plaintiff's    note 
was  two  orders  drawn  by  Gregory  on 
and    accepted    by    the    plaintiff,    in 
favor  of  two  other  creditors  of  Greg- 
ory, on  the  same  day.     To  show  that 
the  orders  were  accepted  anterior  to 
the    commencement    of    the    suit,    the 
plaintiff  offered   in  evidence   his   own 
declaration  to  B.,  a  witness,  made  on 
the  same  day,  but  before   the  attach- 
ment, that  he  had  agreed  to  pay  the 
debts    secured    by    the    orders.     They 
were  held   inadmissible.        The  court, 
by  Parker.  C.  J.,  said:     "The  decla- 
rations of  a  party  in  his  own  favor, 
by  the  general  rule,  are  inadmissible. 
There  are  cases  of  declarations  or  en- 
tries, operating  in  favor  of  the  party 
making  them,   which   are   admissible; 
but  in  all  instances  they  relate  to  or 
accompany    some    act,    and    therefore 
are  a  part  of  the  res  gestae.  The  dec- 
larations  excluded  in   this   case  were 
not  of  that  character,  but  mere  naked 
assertions    of    a    fact,    which    4o    not 
come  within  any  of  the  exceptions  to 
the  general  rule.     It  is  said  that  the 
declaration  so  made  is  a  fact.     That 
is  true;   but  the  fact  is  also  a  decla- 
ration only,  made  by  a  party  to  sup- 
port  his    own    interest.        Now   it    is 
true  that,  at  the  time  of  making  the 
declaration,  it  probably  had  no  refer- 
ence  to   any   controversj'.     Yet,    if    it 
is    admitted    that    such    declarations 
are  good  evidence,  we  shall  soon  find 
cases   of    declarations    and    assertions 
of  a  fact  as  having  happened,  with  a 
view  to   support  what  may  be  after- 
wards  done,   when   it    is   too    late   to 
have  its  effect,  and  when   it  may  be- 
come   necessary    to    antedate,    if    we 
may  use   the   expression,   the   fact  in 
controversv."     Carter    v.    Gregory,    8 
Pick.   (Mass.)    165,  168,  169. 


Sec.  145.]  Admissions.  465 

In  Massachusetts,  the  return  and  acts  of  a  ministerial  officer  are 
denied  as  evidence  in  his  favor.  Thus,  in  trespass  by  the  plain- 
tiff, a  deputy  sheriff,  he  proved  that  he  had  attached  certain  prop- 
erty of  S.,  which  was  afterwards  removed  by  the  defendant.  The 
defendant,  another  deputy,  offered  in  evidence  a  writ  and  his  own 
return  upon  it,  showing  that  he  had  attached  the  same  property 
the  day  before,  and  also,  that  on  the  day  before  he  was  seen  at 
work  within  view  of  the  property,  and  told  a  witness  he  had  at- 
tached it.  It  was  held  that  neither  the  return  nor  declarations 
were  admissible,  not  being  a  part  of  the  res  gestac.^^ 

Letters  written  by  a  party  are  not  evidence  for  him."*  Thus, 
in  ejectment  by  the  proprietor  of  Pennsylvania,  the  defendant 
showed  a  deed  to  himself.  The  plaintiff  offered  a  letter  from 
William  Penn,  the  proprietor,  to  show  that  the  grant  was  on  a 
condition  not  performed.  It  was  rejected  on  the  ground  that  a 
man  cannot  create  evidence  for  himself.""* 

If  a  party's  declarations  or  admissions  which,  when  taken  in 
one  way,  are  evidence  against  himself,  are  not  to  be  received  for 
him ;  if  his  letters  in  his  own  favor  are  to  be  excluded,  it  follows 
of  course  that  other  oral  or  written  declarations,  either  indifferent 
at  the  time  or  favorable  to  his  own  interest,  are  inadmissible.  Ac- 
cordingly, in  an  action  against  A.  &  B.,  as  partners,  on  a  contract 
executed  in  the  partnership  name,  A.  suffered  a  default,  and  B. 
pleaded  the  general  issue.  It  was  held  that  letters  written  by  A. 
in  the  partnership  name  could  not  be  read  in  evidence  by  B.,  a 
partner  with  A.^^ 

The  registry  of  a  vessel  procured  by  a  party  is  no  evidence  for 
him,  though  it  may  be  against  him."  A  survey,  though  ancient, 
made  by  direction  of  the  owner  of  the  land,  for  his  own  conven- 
ience, is  not  admissible  evidence  for  him  or  those  claiming  under 
him.^^  On  a  question  whether  the  plaintiff  to  whom  cotton  was 
consigned  as  a  factor  of  the  defendant,  had  sold  it  in  a  foreign 

"  Merrill      v.      Sawver,      8      Pick.  "  Proprietary's    Lessee   v.    Ralston, 

(Mass.)    397,    398.      But   see    Cornell  1  Dall.   ( U.  S.)    18. 

V.   Cook.  7  Cow.    (N.  Y.)    310,  313.  ="  Chaniplin      v.      Tilley,      3      Day 

"  Fowle  V.   Stevenson,   1  John.  Cas.  (Conn.).  303,   300. 

(N.   Y.)    110;   Champlin   v.   Tillev.    3  "  Ligion  v.  Orleans  Nav.  Co.,  7  La. 

Day    (Conn.),    303,    306.        A    letter  An.  682. 

written  by  one  to  the  attorney  of  the  -'Jones    v.    Huggins,    1    Dev.     (N". 

opposite  party  is  not  evidence  in  his  •  C. )   223. 
favor    althouo;h    replied    to.     Duystes 
V.  Crawford  '(N.  J.),  55  A.  823. 

30 


^QQ  Evidence.  [Chap.  IQ 

market,  it  Avas  lioM  that  the  plaintiff's  letters,  averring  and  inclos- 
ing an  aceonnt  of  sales  of  the  cotton,  among  other  articles,  though 
offered  merely  with  the  view  of  fixing  the  defendant  with  notice 
and  subsequent  acquiescence  in  the  correctness  of  the  accounts, 
and  so  to  infer  the  sales,  were  inadmissible.^®  In  an  action 
against,  alleged  partners,  the  declarations  of  the  defendants,  made 
subsequent  to  the  commencement  of  the  alleged  partnership  busi- 
ness, are  not  admissible  for  them  to  limit  its  nature  and  extent, 
as  to  sho-\v  it  an  agency  the  one  for  the  other;  though  an  agree- 
ment between  them,  at  or  before  its  commencement,  would  be.^" 
A  written  communication,  made  by  the  defendant  to  tlie  plain- 
tiff, in  respect  to  the  claim  of  the  latter,  was  held  inadmissible  in 
evidence  for  the  defendant. ^^  In  an  action  for  fraudulently  pass- 
ing the  bills  of  a  broken  bank,  the  plaintiff  was  denied  liberty  to 
prove  that  he  showed  the  bills  to  the  witness  and  stated  that  he 
had  them  from  the  defendant — even  to  show  how  the  Avitness's 
attention  was  drawn  to  the  bills,  and  thus  strengthen  tlie  inference 
that  he  had  correctly  identified  them  with  bills  which  he  had 
before  seen  in  the  hands  of  the  defendant.^"  An  inventory  made 
and  returned  by  an  administrator,  after  an  action  commenced  by 
him  for  the  recover}'  of  property  inventoried,  is  not  evidence  for 
him.^^  The  admissions  of  a  debtor  against  the  garnishee  in  a  for- 
eign attachment  are  not  receivable ;  for  they  go  to  throw  the 
claim  from  the  debtor  upon  another.^^ 

Even  an  officer's  return  upon  a  process  is  not  admissible  in  his 
favor  to  prove  any  fact  stated  therein  except  such  as  are  required 
to  be  stated.  Thus,  in  an  action  against  a  sheriff  for  not  return- 
ing an  execution  within  thirty  days,  his  return,  indorsed  thereon, 
that  he  omitted  to  do  so  by  reason  of  sickness,  is  not  admissible 
to  prove  the  fact ;  for  it  is  no  part  of  his  office  to  make  such  a 
return.^^  Therefore  it  is  no  more  than  a  written  declaration  l)v 
a  private  person.  It  is  the  same,  although  the  declarant  is  dead, 
and  his  declarations  are  offered  for  his  estate.  Thus,  in  trover 
for  bonds  of  the  intestate,  the  defendant,  the  intestate's  son,  in- 

='Anthoine  V.  Coit.  2  Hall   (X.  Y.),  '' Allender    v.    Riston.    2    G.    &    J. 

40.  (Md.)    86. 

^"Mitchell  V.  Roulstone.  2  Hall    (N.-  "  Enos  v.  Tuttle,  3  Conn.   247. 

Y.),  351.  =^  Bruce    v.    Dyall,    5    Mon.     (Ky.) 

^^Birkbeck  v.  Burrows.  2  Hall    (X.  125. 
Y.),  51.                                            ■       ■ 

2*  Watson  V.  Osborne,  8  Conn.  3G3. 


Sec.  1J:5.]  Admissions.  467 

sisted  the  intestate  gave  them  to  him.  The  intestate's  declara- 
tions tending  to  negative  this,  made  in  the  defendant's  absence, 
were  held  inadmissible.^*'  A  corporation  is  in  this  respect  on  the 
same  footing  with  natural  persons.  Thus  the  Xorth  Carolina 
State  Bank  being  a  mere  private  corporation,  its  books  of  ac- 
counts of  bank  dealing,  in  a  suit  between  the  bank  and  a  third 
person,  were  held  not  admissible  as  evidence  for  the  former." 
^  So  the  statements  of  a  party's  agent  are  not  admissible  for 
him,  unless  a  part  of  the  res  gestae.  Thus  the  letters  of  an  agent 
giving  his  principal  an  account  of  what  had  taken  place  in  respect 
to  the  matter  of  his  agency  were  held  to  be  inadmissible  for  his 
principal,  even  after  the  agent's  death.^^ 

The  admission  of  a  party's  declaration  in  his  own  favor,  if 
objected  to,  is  fatal  on  error,  although  the  court  below  directs 
the  jury  to  disregard  it.^^  ^r  can  the  defendant  prove  a  con- 
versation between  himself  and  the  plaintiff's  agent,  to  show  ad- 
missions by  the  latter  after  the  business  of  the  agency  has  been 
closed,  because  the  agent's  declarations  bind  his  principal  only 
when  they  are  a  part  of  the  res  gestae,  and  his  own  declarations 
could  only  be  admissible  as  forming  a  part  of  the  conversation  in 
which  the  plaintiff  participated.""' 

There  are,  however,  some  exceptions  to  the  rule  that  a  party's 
declarations  or  admissions  shall  not  be  received  as  evidence  for 
him.  These  exceptions  arise  in  general  when  they  are  connected 
with  some  circumstance  giving  the  evidence  a  force  beyond  what 
it  can  have  as  a  mere  naked  assertion.  Accordingly,  a  constable's 
return  is  evidence  for  him  in  an  action  for  taking  the  goods  away 
under  pretense  of  a  previous  levy."     And  there  seems  no  good 

(Znn7%u^-Scl7%J...  ^rl'      ^"   r^"''""'".  *^  ^"  ^'^  d«"^  ^"d   the 
&    R     (Penn  )    ^3"  '     '  f'^^A     ^"^    '"    ^"^^^    ^-    ^he   Com. 

38rp„t+u  ,,    TT     *    o   r-  /^T    ^rv  .        '^"^"^   ^"""^    ^^e"    referred    by   the 

A-^r     I     r  ]\      "!^*'   ^   ^.°''^-    ■^-  ^-^  '"'"^'^d   to    West   as   the   person   who 

In'  ?7  fn  ""-  ^«7^"ter     13  John  would   settle   the  whole  m^atter      But 

iSim       Penn')    olf''   ''■    ^'''^'^''    ^  f^Seneral  rule  stands  firn,,  that  the 

.OR     <^^""-)    209.  declarations  of  a  party  cannot  be  re- 

Budlong    V.     Van     Nostrand,     24  ceived    in    his    own    favor         Isles    v 

Barb.    (X.   Y.)    25.        In   Meserole   v.  Tucker,  5  Duer    (N.  T)     393     Erben 

Archer,    3    Bosw.     (X.    Y.)     376,    the  v.  Lorillard,  19  N    Y    299 
court  held  It  admissible  to  show  the  "Cornell  v.  Cook,  7  Cow     (N    Y^ 

agent's    declaration    to    her    principal  310,  313.  ^  ' 


468  Evidence.  [Chap.  16 

reason  why  this  shouhl  not  be  so.  Indorsing  a  return  is  part  of 
his  office.  It  is  an  act,  not  only  a  part  of  the  res  gestae,  but  the 
res  gestae  itself.  On  what  other  principle  is  it  that  the  record 
of  a  justice,  drawn  up  for  the  very  purpose,  long  after  the  con- 
viction, will  protect  him  against  an  action  ?^^ 

A  certificate  of  a  justice  of  a  judgment,  execution  or  other  pro- 
ceeding in  a  cause  before  him,  is  evidence  for  himself.  It  may 
be  iiiikIc  out  :il'i(M'  tlic  expiration  of  his  office.''''  And  in  an  action 
by  an  otliccr  tVn-  i)ro])orty  levied  on  by  him,  his  owm  indorsement 
on  the  execution  of  the  property  levied  on  is  evidence  to  identify 
the  property. '"* 

An  in(l<u-senient  of  jiart  jxiyment  upon  a  promissory  note,  every- 
thing about  it  appiMiring  fair,  is  admissible  as  evidence  to  the  jury 
to  take  it  out  of  the  Statute  of  Limitations,  and  will  control,  un- 
less the  defendant  imjieaehes  it  in  some  way.''"  As  where  the  note 
was  for  four  Inindred  dollars,  and  the  indorsement,  bearing  date 
two  years  after  the  date  of  the  note,  was  of  three  hundred  and 
iifty  (b)llars,  leaving  a  balance  of  only  fifty  dollars.  Or  where 
it  is  })roved  that  the  indorsement  was  in  truth  nuide  wlien  it  was 
against  the  interest  of  the  party  who  made  it.*'  Tn  such  case  it 
will  he  received  Xo  rebut  the  presumption  of  payment  arising  from 
the  la])8e  of  time.  But  this  is  not  the  rule  where  tlie  statute  re- 
quires the  promise  to  be  in  writing  in  order  to  remove  the  statute 
bar,  or  reipiires  the  evidence  of  payment  to  be  in  writing  under 
the  hanil  of  the  party  to  be  affected  thereby. 

Wlu're  the  party's  declarations  are  a  part  of  the  res  gestae, 
\\\v\  are  evidence  for  him."*^  Thus,  although  the  declarations  of  a 
testator  of  the  plaintiffs  in  general  are  not  evidence  for  his  execu- 
tors, yet,  where  he  had  been  administrator  for  the  defendant's 
intestate,  never  having  brought  in  his  account,  and  this  omission 
was  urged  against  him  as  showing  that  he  knew  he  had  no  claim, 
it  was  held  that  his  declarations  that  the  intestate's  estate  was  in- 
debted to  him  might  be  nveived  to  rebut  the  inference  sought  to 

'^Finvoott  V.  Fowlos.  7  Pv  &  C.  304:  "Spoor    v.    Holland,    S    Wend.    (  X. 

l\o<»tMs   V.   Jones,    3    id.    409:   Mather  Y.)    445. 

V.   Hood,  8  John.    (X.  Y.)    44:    Brid-  "Gibson   v.    Peebles.   2   M'Cord    (S. 

}vott  V.  Coyney,  Esq..  1   :M.  &  R.  211.  C).  418. 

per  Tknoeroen.  C.  J.  ^' Roseboom  v.   Billington,   17  John. 

"  Mavnard   v.    Thompson,   S    Wend.  (N.  \.)    182. 

(N.  Y.i  3i13.  **  Smith  v.   Morrow,   7   Mon.    (Kv.) 

234. 


Sec.  145.]  Admissions.  469 

be  raised ''  So,  on  a  trial  for  forcible  entry  and  detainer,  the 
question  being  upon  the  relator's  entry,  and  the  extent  and  nature 
of  his  possession,  he  having  proved  that  he  was  in  possession,  was 
allowed  to  show  his  own  declarations  as  to  itsr  extent,  and  the  per- 
son under  whom  he  held.^" 

The  question  whether,  and  how  far,  the  introduction  of  tlie  de- 
fendant's confession  or  declaration  in  evidence  by  the  plaintiff, 
et  sic  e  comerso,  will  make  it  evidence  for  the  party  who  made  it, 
has  arisen  principally  upon  the  confessions  of  prisoners  on  trial 
for  crimes.  By  these  cases  and  others,  the  following  general  doc- 
trine seems  to  be  well  established :— A  party's  declarations  are 
evidence  in  his  favor  when  introduced  by  his  opponent,  although 
their  truth  nmy  he  contradicted  by  contrary  declarations  of  the 
former,  or  by  other  evidence;  and  the  whole  shall  go  together  to^ 
the  jury,  who  are  not  bound  to  credit  the  exculpatory  confession. 

A  party's  declarations  are,  of  course,  inq.uirable  into,  m  order 
to  test  the  credit  of  a  witness ;  as,  if  the  witness  has  stated  them 
in  a  certain  way,  then  the  party  may  contradict  him  by  showing 
what  in  truth  he  did  say  at  the  time,  in  order  to  correct  or  dis- 
credit the  witness.^^ 

Where  there  is  direct  evidence  tending  to  show  that  an  assign- 
ment of  a  legacy,  absolute  on  its  face,  was  in  reality  collateral 
security  for  an  antecedent  debt,  previous  and  subsequent  declara- 
tions of  the  assignee  in  reference  thereto,  made  to  third  parties, 
are  admissible  as  corroborative  evidence,^^  and  the  fact  that  they 
are  contained  in  the  pleadings  filed  in  the  cause  does  not  affect 
their  competency.''  And,  if  made  in  the  presence  and  at  the 
instance  of  others  having  a  like  interest  with  him,  they  are  evi- 
dence against  them  f  and  they  are  admissible  in  evidence  against 
the  person  making  them,  although  the  witness  testifying  to  them 
did  not  hear  the  whole  of  the  conversation  of  which  they  form  a 

part.'^ 

Upon  the  question  of  tlie  defendant's  right  to  maintain  a  dam, 
evidence  that  the  plaintiff  at  one  time  made  the  defendant  an  offer 

"Scull    V      Wallace,     15     S.   &   R.  "People  v.  Scott,  Judicial  Reposi- 

(Penn  )   231    233.  tory    (N.   Y.),  50. 

^0  Smith  V.  Morrow,  7   Mon.    (Ky.)  =»Kutz's  Appeal,  100  Penn.  St.  75. 

gr. ,     pop  "  Adams  v.  Utley,  87   X.  C.  356. 

"  "Rex  V   Jones    2  C.  &  P.  629;  Rex  =^  Tredwell  v.  Graham,  88  N.  C.  208. 

V.  Higgins,  3  id.  603;   Rex  v.  Clewes,  -State  v.  Pratt,  88  N.  C.  639. 
4  id  ^21;   Rex  v.  Steptoe.  4  id.  397; 
Smith  V.  Blandy,  Ry.  &  M.  207. 


4-70 


EvLDEXCE.  [Chap.  16 


for  the  Lind,  stating  that  he  wanted  to  buy  it  so  that  lie  might 
remove  the  dam,  is  competent  as  showing  that  the  phuutiff  recog- 
nized the  defendant's  right  to  maintain  the  dam." 

In  cases  where  the  rights  of  creditors,  forced  heirs  or  other 
third  persons  are  in  no  manner  affected,  the  declarations  and  ad- 
missions of  the  husband,  made  at  a  time  not  suspicious,  that  cer- 
tain property  belongs  to  his  wife  and  was  acquired  by  her,  in  her 
own  right,  by  purchase  or  otherwise,  in  the  absence  of  any  charge 
of  fraud  or  error,  are  legal  and  proper,  and  sufficient  evidence 
against  himself  or  persons  claiming  through  him.  And  such  ad- 
missions may  be  proved  under  the  general  issue.^  So,  in  an 
action  on  an  account,  the  admission  that  the  account  was  correct 
is  an  admission  that  it  was  correct  as  to  all  its  items.^^  A  paper 
rejected  as  a  contract  may  nevertheless,  by  admissions  contained 
therein,  bind  a  party  to  it.^** 

Letters  written  by,  or  at  the  instigation  of,  a  party  to  an  action 
to  third  persons,  warning  them  not  to  aid  the  other  party  or  to 
testify,  or  urging  them  to  testify  to  a  particular  state  of  facts,  are 
in  the  nature  of  admissions  by  conduct,  and  are  admissible  in  evi- 
dence, and  this,  although  they  were  written  before  suit  brought, 
if  the  controversy  preceding  the  suit  was  pending  at  the  time." 

"Lvnn  V.  Thomson.  17   S.  C.  129.  but   rather  in   its  favor,   was  held   to 
"'  Brown  v.  Stroud,  34  La.  An.  374.  be  inadmissible.       Putnam  v.   Fisher, 
"Keller  v.  Jackson,  58  Iowa.  629.  52  Vt.  191;   36  Am.  Rep.  746.     In  an 
'"Bishop  V.  Fletcher.  48  Mich.  555.  action  by  the  widow  of  H.  to  recover 
"  Snell  V.  Bray.  56  Wis.   156.  of    A.    certain    land    claimed    by    A. 
Where   an   agreement   Ijetween   bus-  under  a  parol   promise  of  H.  to  con- 
band  and  wife,  made  before  marriage,  vey,    etc.,    declarations    of    H.     were 
is  set  up  as  a  bar  to  her  right  to  re-  held    to    be    admissible    against    the 
cover    dower    in    his    estate    by    the  plaintiff,  she  claiming  as  H.'s  widow 
heirs    of    the    deceased   husband,    and  and  as  grantee  of   H.'s  heirs  at  law, 
the  widow  seeks  to  avoid  the  agree-  and  accordingly  being  in  privity  with 
ment    as    obtained    from    her    by    her  H.      So,    declarations     of    the    mort- 
husband's      fraud,     his      declarations  gagor   or   his   agent   amounting   to    a 
that   the  agreement   was   void   or   in-  license   to   the  mortgagee   to   sell    the 
valid,   or  good   for  nothing,   and  like  land,  are  admissible.  Atwell  v.  State, 
expressions,    are    admissible    in    con-  63  Ala.   61.     But  a   party  cannot  es- 
nection  with   other  evidence  as   tend-  cape  the  force  of  adverse  evidence  by 
inw     to     show     the     alleged     fraud.  introducing      his       own       statements 
Wentworth  v.  Wentworth,  71  Me.  72.  made  before  the  trial  to  his  attorney. 
In  an  action  on  the  case  for  erecting  Vanneter  v.  Grossman,  42  Mich.   465. 
too  high  a  dam,  the  plaintiff  sought  When,   at   the    trial,   the   witnesses 
to   introduce   a    declaration   made   by  for  one   of   two   colliding  vessels   tes- 
the  grantor  of  those  under  whom  the  tified  that  the  bow  light  of  their  ves- 
plaintiff    and    defendant    claimed,    to  sel  was  burning,  and  on  the  day  after 
the  effect  that  the  dam  was  too  high,  the  hearing  of  the   cause   the  owners 
the  grantor  being  dead,  and  the  dec-  of  the  vessel   caused   the  court  to   be 
laration    not    being    against    interest,  informed,    by    their    counsel,    in   open 


toec. 


145.] 


Admissions. 


471 


When  the  admissions  of  a  party  afford  any  presumption  against 
him,  they  are  admissible.**^ 


court,   that,    although   the    light   was 
burning,   it   was   covered  with   a   tar- 
paulin at  the  time  of  the  collision,  it 
was  held  that  such  a  statement,  made 
under     such     circumstances,     though 
forming  no  part  of  the  evidence  given 
&t     the     trial,     must     be     regarded 
as      an      admission      given      in      the 
cause    of    the    fact     so    stated.     The 
Harry,    9    Ben.    (U.    S.    C.    C.)     524. 
In    an    action    by    an    administrator 
upon  a  claim  belonging  to  the  estate, 
declarations   made   by   him   when   not 
acting  in  the  discharge  of  his  duties, 
and  to  persons  having  no  connection 
with    the    claim,    are    not    competent 
evidence    against    him.        Church    v. 
Howard.  79  X.  Y.  415.     Facts  stated 
in  letters  not  replied  to  are  not   ne- 
cessarily   deemed    to    be    admissible. 
Meguire  v.  Corwine,  3  MacArthur  (D. 
cf,   81.     A   release   of    "all   actions, 
and   rights   of    action."   given   by   the 
plaintiff   to   the   defendant    for   valu- 
able consideration,  after  suit  brought, 
is  not  an  admission  by  the  defendant 
of  indebtedness  at  the  commencement 
of  the  suit.     Crawford  v.  Mel^od.  64 
Ala.   240.     The  fact   that   a   claimant 
^ave  notice  of  a  trial  of  the  right  of 
property    levied   on    under   an   execu- 
tion,  and  that  no   trial   was   had,   is 
held   not   to   be   an   admission   of   the 
validity  of  the  judgment,  service,  and 
return'of  process.     Ledford  v.  Weber, 
7  111.  App.   87.     In  a  prosecution  for 
adultery,  the  question  to  the  defend- 
ant,   on     cross-examination,    whether 
his   wife   had   not   made   a    complaint 
against    the   other   party   for   the    al- 
le'ged   offense,  cannot  be  admitted  on 
the   theory    that    the   wife    could   not 
prosecute  \vithout  his  assent.    People 
T.  Knapp.  42  Mich.  267. 

"Phelan  v.  Bonham,  9  Ark.  389; 
Goodnow  V.  Parsons,  ?6  Vt.  46; 
Wells  V.  Fairbanks,  16  Vt.  516;  Ten- 
nev  V.  Evans.  14  N.  H.  343;  Hardy 
V  'De  Leon,  5  Tex.  211;  McGill  v. 
Ash.  7  Penn.  St.  297:  Doyle  v.  St. 
James'  Church.  7  Wend.  (N.  Y.)  78; 
State  V.  Littlefield,  3  R.  I.  124;  Jones 
V.  Morgan.  13  Ga.  515. 

Thus  the  plaintiff,  in  an  action  for 
suffering  the  defendant's  loaded  cart 
to    remain     in    the    highway,    intro- 


duced a  witness  who  testified  that  the 
defendant,  after  the  plaintiff  received 
the    injury    complained    of,    said:    "I 
did  not  mean  to  remove  the  cart  and 
wood     until     somebody    got     injured, 
and  then  make  known  who  put  them 
into   the   traveled    road;"    and    after- 
wards   said:   "What   would   you   do? 
I    am   provoked   every   day.     I    won't 
touch  the  wood,  if  half  the, .town  runs 
into  it  and  gets  killed."     It  was  held 
that   such   testimony   was   admissible, 
as    it   tended    to    prove   that    the    de- 
fendant   knew    the    situation    of    the 
cart   and   wood;      that   he  recognized 
them  as  his  own,  and  had  not  aband- 
oned  them,   or   resigned   his   claim   to 
anv   trespasser;   that    he    had    a    rea- 
sonable time  to  remove  them,  but  pur- 
poselv    permitted    them    to    remain; 
and  as  it  furnished,  also,  strong  evi- 
dence   of   the   recklessness   of   the   de- 
fendant, and  might  thus  legitirnately 
affect  the  question  of  damages  in  the 
case.     Linsley  v.   Bushnell,    15   Conn. 
225. 

In  another  case,  the  plaintiff  in  an 
action  on  a  guaranty,  for  the  pur- 
pose of  proving  notice  to  the  defend- 
ant of  the  plaintiff's  acceptance  of 
the  guaranty  and  of  the  sale  made 
under  it.  offered  the  declarations  of 
the  defendant  that  he  knew  of  the  ex- 
istence of  the  guaranty:  that  he 
asked  why  the  claim  had  not  been 
presented  "to  the  commissioners  on  hi3 
estate;  and  that,  in  the  conversation, 
he  made  no  objection  that  notice  had 
not  been  given  him,  but  said,  if  the 
claim  was  not  outlawed,  and  it  wag 
a  continuing  guaranty,  he  would  pay 
it.  It  was  held  that  such  declara- 
tions were  admissible.  White  V. 
Reed,    15   Conn.  457. 

So  where  the  defendant  admitted 
to  the  officer  who  arrested  him,  in  a 
suit  on  an  open  account,  that  the  ac- 
count was  correct,  although  it  was 
not  then  shown  to  him,  the  amount 
only  being  stated,  it  was  held  that 
there  was  some  testimony  before  the 
jurv  for  the  plaintiff,  and  they  re- 
fused to  set  the  verdict  aside.  Sugar 
V.  Davis.  13  Ga.  462.  The  admission 
misht  not  have  the  effect  of  estab- 
lishing the  amount  that  was  due,  but 


472 


Evidence. 


[Chap.  16 


Declarations  or  admissions,  after  the  execution  of  a  will,  by 
one  of  several  legatees,  who  is  also  the  executor  and  proponent 
of  the  w'ill,  tending  to  show^  undue  influence,  and  want  of  mental 
capacity  on  the  part  of  the  testator,  are  not  admissible  in  behalf 
of  the  contestants,  where  the  legatees  are  not  jointly  interested, 
and  there  is  no  proof  of  conspiracy  or  combination  between  them.®^ 
Nor  are  the  declarations  of  two  or  more  persons  who  are  shown  to 
have  been  engaged  in  a  common  unlawful  purpose  admissible  in 
evidence  against  the  others,  if  made  after  the  cotnpletio7i  of  the 


it  operated  to  show  that  something 
was  due  from  him. 

lu  an  Indiana  case,  an  action  was 
commenced  by  A.  before  a  justice  of 
the  peace,  and  taken  by  appeal  to  the 
circuit  ocurt.  It  was  held  that  on 
the  trial  on  appeal  the  defendant 
might  prove  admissions  which  had 
been  made  by  the  plaintiff  as  a  wit- 
ness in  a  previous  suit  in  the  circuit 
court,  brought  by  one  B.  against  the 
defendant.  M'Kinzie  v.  Reneau,  8 
Blackf.    (Ind.)    411. 

In  an  Alabama  case,  it  appeared 
that  B.  obstructed  the  waters  of  a 
brook  so  that  they  flowed  upon  the 
land  of  M.  P.  and  W.  afterwards 
purchased  B.'s  land,  and  maintained 
the  obstruction.  It  was  held  in  an 
action  against  them  by  M.  that  P.'s 
admissions  as  to  the  injury  to  the 
plaintiff's  land  from  the  overflow  of 
water  upon  it,  made  a  number  of 
years  before  P.  purchased  an  inter- 
est in  B.'s  land,  were  admissible 
against  him.  Polly  v.  McCall,  37 
Ala.  20. 

If  he  has  given  a  reason  for  his 
conduct  which  is  false,  its  falsity 
may  be  shown  to  enable  the  jury  to 
infer  the  true  reason.  Tompkins  v. 
State,  17  Ga.  356.  So  statements 
made  by  a  party  may  be  shown  by 
way  of  inducement  or  illustration  of 
other  evidence.  Grimes  v.  Talbot,  1 
A.  K.  Mar.   (Ky.)   205. 

So  they  may  be  shown,  although 
otherwise  incompetent,  where  other 
parties  have  been  induced  to  act 
upon  them  so  that  they  would  be 
pre'iodiced  if  they  were  withdrawn, 
and  in  such  a  case  the  party  is  es- 
topped from  denying  their  truth. 
Tompkins  v.  Phillips,   12  Ga.  52. 

A  party's  admissions  of  marriage 
are    competent    evidence    in     support 


of  a  plea  in  abatement  for  the  non- 
joinder of  her  husband.  Laughlin  v. 
Eaton,  54  Me.  156.  In  an  action 
upon  an  account  stated  by  the  plain- 
tiff, but  not  signed  by  the  defeiuhint, 
it  was  held  that  the  amount  migiit 
be  proved  by  the  acknowledgment  of 
the  defendant.  Vinal  v.  Burrill,  16 
Pick.    (Mass.)    401. 

In  an  action  where  notice  to  the 
defendant  was  necessary  before  ac- 
tion brought,  it  was  held  that  the  ad- 
mission by  the  defendant  that  he  had 
received  notice  before  the  action  waa 
brought  might  be  given  in  evidence, 
although  not  made  until  after  the 
action  had  been  commenced.  Dole  v. 
Young,  24   Pick.    (Mass.)    250. 

In  an  action  of  assumpsit  two  wit- 
nesses were  produced  by  the  plain- 
tiff, who  testified  to  conversations 
had  with  the  defendant,  in  which  the 
defendant  requested  one  of  them  to 
procure  the  loan  of  a  certain  sum  of 
money  from  the  plaintiff,  this  loan 
being  the  fact  in  issue;  the  plaintiff 
produced  a  third  witness  to  testify 
to  a  conversation  between  himself 
and  the  defendant  about  the  same 
time,  in  which  the  defendant  spoke  of 
his  intention  to  apply  for  the  same 
loan  that  the  testimony  of  the  other 
witnesses  showed  that  he  did  apply 
for.  It  was  held  that  the  testimony 
of  such  third  witness  was  admissi- 
ble.    Clark  V.  McGraw,  14  Mich.  139. 

Evidence  given  at  a  former  trial  by 
A.  was  offered  as  his  admission,  he 
being  a  party  to  the  suit  wherein  it 
was  offered.  It  was  held  that  it 
might  be  introduced  to  prove  such 
admission  without  the  production  of 
the  record  of  the  former  trial.  Kutz- 
meyer  v.  Ennis,  27  N.  J.  L.  371. 

•^^La  Bau  v.  Vanderbilt,  3  Redf 
(N.  Y.)    384. 


Sec.  145.] 


Admissions.  473 


unlawful  purposed*     In  an  action  where  a  recovery  may  be  had 
against  the  principal  alone  or  against  both  himself  and  the  surety, 
admissions  made  by  the  principal  after  breach  of  the  obligation 
should  not  be  received  as  against  the  surety.''     The  declarations 
of  a  partner,  made  in  procuring  a  loan-,  to  induce  parties  to  be- 
come sureties  for  the  partnership:,  or  ta  become  soireties  of  a  re- 
newal thereof  at  maturity,  during  the  existence  of  the  partner- 
ship, if  acted  on  in  good  faith,  are  binding  upon  the  partners.'^ 
In  an  action  against  G.'s  administrator  and  P.,  on  an  alleged 
partnership  debt  of  P.  and  G.,  the  administrator  denied  the  part- 
nership,  and  P.   admitted  his  individual  liability,   and  pleaded 
his  discharge  in  bankruptcy,  which  was  not  controverted.     It  was 
held  that  declarations  by  P.,  tending  to  prove  his  liability  as  a 
partner  of  G.,  were  not  admissible."     In  an  action  by  a  wife  to 
recover  for  wrongfully  and  maliciously  procuring  her  husband 
to  abandom  her,  his  declarations,  made  in  the  defendant's  absence, 
as  to  the  cause  of  abandoning  her,  are  inadmissible.®^     Declara- 
tions of  a  party  made  after  suit  brought,  or  after  a  rupture  be^ 
tween  the  parties,  are  clearly  inadmissible.*^^     And  the  declara- 
tions of  a  grantor,  after  parting  with  his  title,  are  not  evidence 
to  support  or  impeach  it  in  the  hands  of  the  grantee ;  but,  if  part 
of  a  conversation  is  given  by  one  party,  the  other  may  inquire 
into  the  whole.^*^     Mere  verbal  declarations,  that  a  release  had 
been  executed,  will  not  be  sufficient  to  establish  the  existence  of 
a  deed,  more  particularly  where  there  is  no  other  evidence  to  sup- 
port the  presumption  of  its  having  been  executed.'^^     Nor  are  the 
declarations  of  a  party  interested  in  the  matter  in  controversy, 
if  made  at  a  time  when  he  had  no  interest.''^     A  party  to  a  suit 
cannot  be  estopped  by  his  oral  admissions  to  a  third  person,  if  by 
independent  evidence  he  shows  that  these  admissions  were  con- 
trary to  the  truth.'^^     Admissions  made  with  a  view  to  a  compro- 
mise are  not  admissible.^"*     Nor  those  contained  in  a  deposition 

"Phillips  V.  State,  6  Tex.  App.  364.  ''Lands  v.  Crocker,  3  Brev.   (S.  C.) 

"Lee  V.  Brown,  21  Kan.  458.  40. 

^McKee  v.  Hamilton,  33  Ohio  St.  7.  "Burton   v.    Scott,   3   Rand.    (Va.) 

"Cowan    V.    Kinney,    33    Ohio    St.  399. 

422.  '^  Husbrook    v.    Strawser,    14    Wis. 

''Westlake    v.    Westlake,    34    Ohio  403. 

gt    621.  '*  Wilson  v.  Hines,  1  Minor   (Ala.), 

^»  Wetmore  V.  Mell,  1  Ohio  St.  26.  25.5;      Rideout  v.   Newton,   17   N.   H. 

""Posterns   v.   Posterns,   3  W.  &  S.  71;   Wood  v.  Wood,  3  Ala.  756;   Per- 

(Penn.)     127.  kins  v.  Concord  R.  R.,  44  N.  H.  223; 


474  Evidence.  [Chap.  16 

in  perpetuam,  or  declarations  made  by  the  deponent  at  the  time 
of  giving  the  deposition.^^  iSTor  those  made  bj  the  defendant  or 
his  attorney,  not  made  to  the  plaintiff  or  in  his  presence.'^  Xor 
the  confession  of  a  party  to  a  real  action,  that  he  had  i>reviously 
<!onveyed  his  right  in  the  premises."  An  admission  by  a  party  to 
a  suit,  that  the  suit  must  go  against  him,  is  not  admissible.^*  Xor 
■confidential  overtures  for  pacification,  or  other  propositions  be- 
tween litigating  parties.  But  an  offer  to  pay  a  debt  in  property 
instead  of  money  is  not  an  offer  of  compromise."  Xor  the  dec- 
laration of  a  party  that  a  witness  introduced  by  him  knew  nothing 
of  the  matter  in  controversy.*''  Xor  that  he  had  been  served  with 
a  subpoena.*^  ISTor  a  declaration  by  a  party  of  an  intention  merely 
to  do  a  certain  act;  except  in  connection  with  evidence  tending 
to  show  that  he  actually  did  it.*^  Xor  the  statement  of  the  plain- 
tiff to  a  third  person,  in  the  presence  of  one  of  the  defendants, 
not  addressed  to  him,  nor  calling  for  any  reply,  and  not  replied 
to  by  him.*^  Kor  whatever  may  be  his  interest  in  the  matter  in 
dispute,  unless  charged  with  knowledge  of  the  acts  complained  of, 
are  his  acts  or  admissions  evidence  to  affect  his  co-defendants.** 
Unsworn  pleadings  are  never  admitted  as  evidence  against  the 
pleader  in  another  suit  between  him  and  other  parties,  as  admis- 
sions or  declarations  of  the  facts  contained  in  them.  Still  less 
would  a  party  be  bound  by  an  expression  of  opinion  as  to  the  ex- 
tent of  his  legal  rights  or  liabilities.*"  In  Missouri,  where  a 
plaintiff,  in  an  action  before  a  justice  of  the  peace,  examines  the 
defendant,  he  cannot,  on  appeal  to  the  circuit  court,  be  allowed 
to  prove  the  declarations  of  the  defendant  in  testifying  before  the 
justice  of  the  peace.*^  Evidence  of  admissions  by  a  party  that  he 
authorized  another  to  give  a  note  to  a  third  person  for  a  specified 
sum,  does  not  warrant  the  reading  in  evidence  of  a  note  corres- 
ponding with  the  note  thus  authorized  to  be  made,  without  proof 
of  its  having  been  duly  made.*'  A  failure  of  title  to  lands  can 
be  shown  only  by  documentary  evidence ;  still,  a  witness,  in  testi- 

Williams   V.  Thorp,  8   Cow.    (X.   Y.)  "  Hasbrouek    v.    Baker,    10    Johns. 

201;   State  v.   Button.    11    Wis.   371.  (N.  Y.)    248. 

'=Dwinel   v.   Godfrey.  44   Me.   65.  «=  Bullock  v.  Beach,   3  Vt    73 

"Green  v.  Sprogle,   16  Md.  579.  «' Gale  v.  Lincoln,   11   Vt     152 

'  Barnard  v.  Pope,   14  Mass.   434.  "  Dawson  v.  Hall.  2  Mich    390 

Crockett  v.  Morrison,  11  Miss.  3.  *=  Crump  v.  Gerock,  40  Miss    765. 

^  Ferry  v.  Taylor.  33  Mo.  323.  *°Martien  v.   Barr.  5  Mo.   102 

Clarke  v.  Mershon,  2  N.  J.  L.  70.  *' Minard    v.    Mead,    7    Wend     (N 

Y.)    68. 


Sec.  14G.]  Admissions.  475 

fying  to  conversations  with  the  party  responsible  in  damages,  may 
si>eak  of  such  failure,  if  the  plaintiff  disavows  all  benefit  of  proof 
of  failure  of  title  arising  from  such  conversations.^^  The  con- 
tents of  a  letter  which  is  lost,  containing  a  memorandum  of  an 
admission,  cannot  be  used  as  evidence,  where  the  writer  of  it  can. 
only  say  that  what  he  wrote  was  undoubtedly  true,  but  that  he 
has  no  recollection  of  the  contents  of  the  letter,  except  that  it  con- 
tained a  proposition  of  settlement. ^^  An  admission  contained  in 
an  uudelivered  instrument  is  not  binding  upon  the  party  wdiose 
hand  and  seal  are  attached  to  it.^°  Wliere  the  question  to  be  de- 
termined is  the  sanity  of  a  person,  both  the  acts  and  declarations 
of  a  person  are  evidence  for  the  purpose  of  ascertaining  the  state 
of  mind  of  the  actor ;  but  the  effects  of  his  acts  and  declarations 
on  a  third  person,  on  the  day  before  the  homicide,  cannot  be 
shown,  nor  his  acts  and  declarations  then  made  in  the  absence  of 
the  accused.^^  As  a  general  rule,  a  paper  executed  by  a  third 
person  cannot  be  admitted  as  evidence  of  the  truth  of  its  recitals, 
when  hisi  declarations  to  the  same  effect  would  be  inadmissible, 
on  the  ground  of  being  hearsay  evidence.®^  In  an  action  brought 
for  services  in  negotiating  the  purchase  of  real  estate,  a  declara- 
tion of  the  plaintiff  to  the  vendor  of  the  land  is  inadmissible  to 
show  the  amount  the  plaintiff  was  to  receive  for  his  services  from 
the  vendee.^^  Nor  are  admissions  admissible  to  prove  the  con- 
tents of  a  written  instrument,  without  its  absence  is  accounted  for 
by  proof  of  notice  to  produce  it  on  proof  of  its  loss.  The  ab- 
sence of  the  instrument  in  another  State  is  not  a  sufficient  reason 
for  admitting  parol  evidence  of  its  contents.^* 

Sec.  146.  Whole  Admission  must  be  taken  together. 

An  important  rule  relating  to  the  admissions  of  a  party  is,  that 
tJie  whole  statement  containing  the  admission  must  he  tal'en  to- 
gether, whether  the  admission  is  verbal  or  written;  for  although 
some  part  of  it  may  contain  matter  favorable  to  the  party,  and  the 
object  is  only  to  ascertain  what  he  has  conceded  against  himself, 

'5  Morris  v.   Wadsworth,    17   Wend.  "'Lake  v.  People,  1  Park.    (X.  Y.) 

(N.   Y.)    103.  Cr.  495. 

'^Clute  V.  Small,  17  Wend.   (N.  Y.)  "Garrigue  v.  Losher,   3   Bosw.    (N". 

238.  Y.)    578. 

""Robinson  v.  Cushman,  2  Den.   (N.  "^  Erben  v.  Lorillard,  19  N.  Y.  299. 

Y.)    149.  »*  Threadgill  v.  White,  11  Ired.    (N. 

C.)    L.  591. 


476 


Evidence. 


[Chap.  16 


and  what  may  therefore  be  presumed  to  be  true,  yet,  unless  the 
whole  is  received  and  considered,  the  true  meaning  and  import 
of  the  part  which  is  good  evidence  against  him  cannot  be  ascer- 
tained/    Thus  in  an  action  for  jx^rsonal  injuries  where  the  plain- 


^  Thomson   v.   Austen,   2    D.   &    Ry. 
361;      Fletcher  v.   Froggart,   2   C.   & 
P.    569.     It   is    a    principle   well    set- 
tled, that  the  admissions  of  a   party, 
where    given     in    evidence,    must    be 
taken   together,   as   well   what   makes 
in  his   favor   as  what   makes   against 
him.       Storer  v.  Gowen,  18  Me.   174; 
Howard  v.  Xewson,  5  Mo.  523:   Reas 
V.    Hardv.     7     Mo.    348;      Taylor    v. 
Whiting."  2  B.  Mon.    (Ky.)    268;   Ar- 
nold V.  Johnson,  2  111.   19G:   Newman 
V.  Bradley.  1  Call.   (U.  S.)   240;   Far- 
rel   V.   McClea,   id.    392;   Kammell    v. 
Bassett,  24  Ark.  499;   Wilson  v.  Cal- 
vert,  8   Ala.   757 ;   Ward   y.   Winston, 
20   Ala.    167;   Barnum   v.   Barnum,   9 
Conn.   242 ;   Ives  y.   Bartholomew,   id. 
309:   Bristol  v.  Warner,   19  Conn.  7; 
Morris  y.   Stokes,   21  Ga.  552;    With- 
ers v.  Richardson,  5  T.  B.  ;Mon.   (Ky. ) 
94;   Turner   v.   .Jenkins,    1   Har.   &   J. 
(Md.)     161;      Whitwell   y.    Wyer,    11 
Mass.  6;   O'Brien  y.   Cheney,  5  Cush. 
(Mass.)     148:   Moore   y.   Ross,    11    X. 
H.  547;  Kelsey  v.  Bush,  2  Hill    (X. 
Y.),  440;   Carver   y.   Tracy.   3   Johns. 
(N.  Y.)    427;  Wailing  y.'Toll,   9  id. 
141;      Credit   v.    Brown,    10   id.   365; 
Hopkins  v.  Smith.  11  id.  161:   Tenner 
v.  Lewis.  10  id.  38:    Perego  y.  Purdy, 
1    Hilt.     (N.    Y. )    269:      Overman    y. 
Coble,  13  Ired.    (X.  C.)    L.   1;   Devlin 
V.  Killcrease,  2  McMull.    (S.  C.)   425. 
But  the   jury  may   believe   a   portion 
and    disregard    the    rest.        Coon    v. 
State,     21     Miss.     246;      McCann     v. 
State,  id.  471;  Licett  v.  State,  23  Ga. 
57;  Field     y.     Hitchcock,     17     Pick. 
(Mass.)    182;   Green  v.  State,  13  Mo. 
382:   Mattacks  y.  Lyman,  18  Vt.  98; 
Wilson     y.     Calvert,     8     Ala.     757; 
Brown's    Case,    9    Leigh     (Va.),    633. 
Where  the  evidence  was,  that  the  de- 
fendant,   on    being   shown    the    plain- 
tiff's  account,   said :      "  It   is   correct, 
but    I    have   an    oflFset,"    and   no   evi- 
dence was  offered  to  prove  any  offset, 
it  was  held  that  a   recovery  for   the 
amount  of  the  plaintiff's  account  was 
warranted    by    the    evidence.        Dela- 
mater  v.  Pieice,  3  Den.    (X.  Y.)    315, 
010.     So  where,  in  trover,  a  witness 


testifies  that  the  property  in  ques- 
tion belongs  to  the  plaintiir,  that,  as 
authorized  by  him, 'she  pledged  it  on 
certain  terms  to  the  defendants,  tell- 
ing them  the  propertj'  was  the  plain- 
tiff's, it  was  held  it  is  not  erroneous  to 
allow  the  witness  to  state  what  she 
told  tiie  plaintiff  was  the  bargain 
made.  Meserole  v.  Archer,  3  Bosw. 
(X.  Y.)  376.  If  a  defendant  relies 
upon  an  admission  in  a  bill  in  equity, 
he  must,  as  a  general  rule,  take  the 
whole  of  such  admission.  Stuart  v. 
Kissam,  2  Barb.  (X.  Y.)  493.  But 
there  are  exceptions  to  this  rule. 
Thus,  while  the  declarations  of  a 
party  in  possession  of  land,  or  of  per- 
sonal property,  are  admissible  as  'ex- 
planatory of  his  possession,  it  is  not 
permissible  to  prove  everytliing  he 
said  in  respect  to  the  title,  how  it-was 
acquired,  etc.,  and  an  inquiry  em- 
bracing so  extensive  a  scope  should 
be  rejected.  McBride  v.  Thompson, 
8  Ala.  650.  Xor  can  the  declaration 
of  a  party  be  made  evidence  in.  his 
own  favor  on  the  ground  that  they 
were  made  in  a  conversation,  part  of 
whicli  was  called  out  on  a  cross-ex- 
amination by  the  other  party. 
Lynch  v.  McBeth,  7  How.  (X.  Y.) 
P"r.  113.  Where  the  declarations  of 
a  vendor  are  given  in  evidence 
against  him,  in  order  to  prove  repre- 
sentations made  by  him  at  the  sale, 
it  is  competent  to  prove  everything 
he  said  at  the  time  upon  the  subject, 
but  not  what  he  said  subsequently. 
Bradford  v.  Bush,  10  Ala.  386.  All 
that  was  heard  of  a  party's  admis- 
sions may  be  given  in  evidence 
against  him,  although  more  was  said 
which  was  not  heard.  State  v.  Cov- 
ington, 2  Bailey  (S.  C),  569;  Mays 
y.  Deaver,  1  Iowa,  216;  Williams  v. 
Keyser,  11  Fla.  234.  The  rule  that 
where  confessions  or  admissions  are 
introduced  by  one  party,  the  oppo- 
site'party  is  entitled  to  the  whole 
conversation,  does  not  give  such 
party  a  right  to  the  whole  conversa- 
tion' of  the  witness,  because  he  has 
stated  some  of  his  remarks  necessary 


Sec.  146.] 


Admissions.  477 


tiff  introduces  in  evidence  the  cross-examination  of  one  of  the  de- 
fendants on  a  previous  trial  involving  similar  issues,  the  defen- 
dant should  he  allowed  to  introduce  also  the  direct  examination 
had  at  the  same  time."     Where  an  attorney  so  refers  to  a  writing 
in  examination  of  a  witness  that  the  jury  must  believe  that  they 
are  listening  to  testimony  as  to  its  contents,  it  is  considered  put  in 
evidence,  although  not  shown  or  directly  read  to  the  jury,  and  the 
whole  of  it  must  be  read  on  demand.^     Where  a  party  in  a  suit 
ao-ainst  a  broker,  introduces  as  an  admission  the  broker's  state- 
ment of  account  of  stocks  bought  and  sold,  the  broker  is  entitled 
to  put  in  also  a  letter  accompanying  the  statement  showing  terms 
of  sale.''     A  plea  of  guilty  to  a  criminal  charge  of  assault  is  evi- 
dence in  a  civil  action  only  as  an  admission  and  the  defendant 
may  show  the  whole  statement  he  made  in  the  criminal  court  to 
show^   that  his  plea  there  was  not  an  unqualified   admission   of 
guilt.^     A  witness  may  testify  to  a  oonversation  had  with  a  party 
in  the  course  of  which  tlie  latter  made  admissions,  even  though 
the  witness  during  the  conversation  repeated  hearsay  statements 
made  to  him  by  the  opposite  party.^ 

But  though  the  whole  of  what  he  said  at  the  same  time,  and  relat- 
ing to  the  same  subject,  must  be  given  in  evidence,  it  does  not  fol- 
that  all  the  parts  of  the  statement  should  be  regarded  as  equally 
deserving  of  credit;  but  the  jury  must  consider,  under  all  the 
circumstances,    how   much    of   tlie   whole    statement   they    deem 

to  the  understanding  of  what  the  admissions  are  to  be  taken  altogether, 
party  said.  Young  v.  Bennett,  5  111.  is  limited  to  what  was  said  at  the 
43.  Where  a  party  offers  in  evi-  time.  Edwards  v.  Ford,  2  Bailey 
dence  the  admissions  of  an  opponent,  (S.  C),  461;  Hatch  v.  Potter,  3  111. 
though  the  whole  admission  must  be  (2  Gilra.)  725;  People  v.  Green,  1 
taken  and  weighed  together,  it  is  not  Park.  (N.  Y.)  Cr.  11.  And  the  dee- 
necessary  that  the  jury  should  find  larations  of  a  party  on  one  day,  as 
it  to  be 'wholly  true,  or  wholly  reject  explanatory  of  what  was  said  by  him 
the  evidence.  '  It  must  all  be  received  on  another  day,  and  which  was  given 
as  testimony  for  their  consideration;  in  evidence,  cannot  be  shown  by  testi- 
but  the  truth  of  the  whole,  or  any  mony.  Blight  v.  Ashley,  Pet.  (U. 
part,  may  be  judged  of  from  the  dec-  S.  C.   C.)    15. 

laration    itself    or    from    other    testi-  *  Weeks  v.  McNulty,  101  Tenn.  495, 

mony  overruling  or  controlling  those  48  S.  W.  809,  70  Am.   St.  Rep.  693. 
portions     of    the    admission     making  « Lombard    v.    Chaplin,    98    Maine, 

against  the   party  offering  it.     Pear-  309,  56  A.  903. 

son  v.  Sabin,   10  N.  H.  205.       And  a  *  Morris   v.    Jamieson,   205    111.   87, 

court     or     jury    may,     on     sufficient  68  N.  E.  R.  742. 

ground,    believe    part    and    disbelieve  '  Eisdon  v.  Yates,  145  Cal.  210,  78 

another  part,  yet  such  parts  must  be  Pac.  641. 

distinct,  and  relate  to  difl'erent  mat-  "  Fitzpatrick      v.      Tucker       (Kan., 

ters   of  fact.     Fox  v.  Lambson,   8  N.  1904),  78  Pac.  828. 
J.   L.  275.     The  rule  that   a   party's 


478  Evidence.  [Chap.  16 

worthy  of  belief,  including  as  well  the  facts  asserted  by  the  party 
in  his  own  favor,  as  those  making  against  himJ  The  presump- 
tion or  probability  that  those  portions  of  a  party's  statement 
which  are  against  his  interest  are  true,  is  supix)sed  to  give  credit 
to  other  parts  of  the  same  statement,  with  respect  to  which  there 
is  no  such  persumption,  but  perhaps  a  contrary  presumption.  A 
statement  therefore  received  for  tlie  purpose  of  proving  facts 
therein  stated  by  him  against  his  interest,  is  not  to  be  excluded 
with  resj)ect  to  other  facts  stated  which  are  in  his  favor.^  It  is, 
however,  to  be  understood  that  the  several  parts  of  a  statement 
are  not  necessarily  entitled  to  equal  credit;  the  jury  may  believe 
one,  and  reject  the  other.^  A  party  may  avail  himself  of  the  ad- 
missions of  his  ojiponent  without  being  bound  to  accept  all  of  his 
statements  in  explanation  of  the  admissions.^*^  So  where  a  part 
of  a  paragraph  in  an  answer  of  defendant  is.  introduced  admitting 
that  the  plaintilf  was  struck  by  the  defendant's  engine,  this  may 
be  competent  as  an  admission  without  the  introduction  of  the 
remainder  of  the  paragraph  which  sets  up  that  the  accident  was 
not  due  to  the  negligence  of  the  defendant's  servants.'^ 

And  where  the  party,  to  substantiate  a  credit  in  his  favor,  pro- 
duces an  account  made  out  by  the  opposite  party,  though  he  ren- 
ders it  evidence  in  the  first  instance  to  prove  the  debits  against 
himself  in  the  same  account,  yet  this  is  not  conclusive,  and  he  will 
still  be  at  liberty  to  disprove  the  debits,^^  or  impeach  them  by 
showing  them  erroneous  on  their  face.^^  And  where,  in  an  action 
for  the  price  of  one-half  of  a  steamboat  sold,  the  defendant  ad- 
mitted that  he  purchased  it,  but  said  he  had  paid  for  it,  the  plain- 
tiff Avas  allowed  to  disprove  the  latter  branch  of  the  confession 
by  circumstances;  and  the  jury  thinking  it  was  overcome,  the 
court  refused  to  disturb  the  verdict,  the  court  saying:  "Confes- 
sions must  be  taken  together;  but  when  extra-judicial,  as  in  this 

'  Berman    v.    Woodbridge,    2    Doug.  Smith    v.    Hunt,    1    McCord     fS.    C.) 

788,  per  Lord  Maxsfieeld;   Smith  v.  449. 

Blandy,  Ry.  &  M.  259.   per  Best,   C.  '"Detroit    Electric    Light    &    Power 

J..   Cray  v.   Halls,   cited   id.   258,  per  Co.  v.  Applebaum,   132  Mich.  555,  94 

Abbott,  C.  J.;  Whitwell  v.  Wyer,  11  X.  W.   12. 

Mass.   G,   10:    Garey  v.   Xicholson.  24  "Stewart  v.  X.  C.  R.  R   Co     136  X 

Wend.    (X.  Y.)    350;  Kelsey  v.  Bush,  C.  385.  48  S.  E.  793 

2  Hill   (X.  Y.)  440.               '  'MValden    v.    Sherburne.    15    John. 

*  Beckham   v.   Osborne,    6   M.   &    G.  (X.  Y.)   409;  Turner  v.  Child.  1  Dev 

771.  (X.  C.)    134. 

'Berman    v.    Woodbridge,    2    Doug.  '^ Jones  v.   Jones,  4   Hen.   &   :Munt 

788;   Rex  v.   Clevves,  4   C.  &  P.  221;  447. 


Sec.  l-tC] 


Admissions. 


47^ 


case    the  .veiglit  of  evidence  by  which  fliey  may  be  rebiitteJ  de- 
pends on  all  the  circumstances  of  the  case  as  disclosed  by  testi- 


mony. 

"Quick  V.  Johnson,  6  Mart.    (La.) 
532    533.     And  see  Thommon  v.  Kal- 
baci.     12   S.   &  R.    (Penn.)    238,   240. 
So    where   the   evidence   in  assumpsit 
for  money  lent  was,  that  the  defend- 
ant ■^aid.'  '^I  borrowed  the  money,  but 
1  paid   it."  the  jury  were  instructed 
that  the  confession  must  be   received 
tocrether,    but    that    they    were    not 
bound  to  credit  the  assertion  of  pay- 
ment;  and  they  found  for  the  plam- 
tiflf     owing    to    some    slight    evidence 
which  tended  to  repel  the  assertion  ot 
pavment.    Newman  v.  Bradley,  1  Uaii. 
(U    S  )   •''40     In  an  action  for  wages, 
as  mate  of  a  vessel,  against  the  mas- 
ter, the   latter   said  he   y^^   captain 
but  never  engaged  the  plaintiff,  wl  o 
was     employed     by     the    owner      The 
court   told   the   jury   they   must   take 
the   whole   together,   unless    the    pait 
in  his  favor  was   inconsistent  or   im- 
probable.    The  defendant  had  a  right 
to  choose  his  mate,  though  employed 
by   the   owner;    and   the   mate   had   a 
three-fold    remedy,    one    against    the 
master,  the  same  as  a  common  sailor 
had;    and    gave    the    opinum    of    the 
court,  that  if  the  phrintiff  set-ved  with 
the    defendant's    permission,    he    was 
liable.    Farrel   v.  M-Clea,   1   Dall.    (L. 
S  )    38-^     In  another  case,   the  plain- 
tiff proved  that   he  presented  his  ac- 
count to  the  defendant,  who  said,     It 
is   just,   but   1   paid   it  by   a   man   in 
Petersburgh;  and  had  I  time,  I  could 
proveit."    The  court  said:     "The  rule 

is  that  a  confession  shall  be  taken 
together;  but  if  there  are  circum- 
stances mentioned  in  the  confession, 
which,  when  examined  into,  disprove 
the  matter  alleged  in  discharge,  or 
where  that  matter  can  be  disproved, 
the  jury  are  to  reject  it,  and  go  upon 
the  other  part  of  the  confession  only ; 
as  where  he  savs,  'The  account  is  just, 
but  I  paid  it  before  such  persons, 
and  they  know  nothing  of  the  pay- 
ment ;  or  at  such  time  and  place,  and 
it  be  proved  that  at.  that  time  he 
was  not  at  the  place,  but  at  another, 
far  distant;  or  if  he  says,  'The  ac- 
count is  just,  but  I  will  prove  it 
paid   if   I   have   time,'   and   he   is   al- 


lowed  that   time   and    called   upon    to 
make    that    proof,    and    does    not;    in 
such  and  the  like  cases,  the  matter  m 
discharge   will    be   rejected."      Barnes 
V.    Kelley,    2    Hay.    (N.    C.)    45.      In 
stating      an      account,      the      creditor 
chargecl  inter  alia  $150  for  a  .wagon, 
which  was  the  only  item  proved,  and 
made   the    balance    due    to    him    $84, 
after   giving   several   credits.      He,  at 
the  time  of  stating  the   account,  ad- 
mitted that  the  wagon  had  been  paid 
for,    which,    if   he    had   not    been    al- 
lowed his  other   charges,  would  have 
made  a  balance  the  other  way.     The 
jury  considered  the  written  statement 
and   confession   all   together,   and  dis- 
credited the  latter,  allowing   the  bal- 
ance as  struck.     This  was  held  prop- 
er.     The    court    said   the    jury    must 
judge  what  credit  is  due  to  any  part 
of  a  statemait,  written  or  oral.     Tur- 
ner v.  Child,  1  Dev.   (U.  S.)   133,  134. 
The  defendant  confessed  he  had  com- 
mitted a  homicide  by  shooting  at  the 
vital   parts   of   a    negro,   declaring   at 
the  time  he  intended  to  hit  his  legs; 
but    other    proof   showed   him    within 
ten   feet  of   the   negro  when  he   shot^ 
so  that  he  might  have  hit  his  legs  if 
he    had    chosen.    In    trespass    by    the 
owner  of  the  negro,  it  was  held  that 
the  jurv  might  reject  the  latter  part 
of  the  confession  and  act  on  the  first. 
Arthur  v.  Wells,  2  Rep.  Const.  (S.  C.) 

314. 

On  a  reference  to  take  an  account 
the  defendant  claimed  to  have  al- 
lowed to  him  credits  for  large  dis- 
bursements contained  in  an  account 
produced  against  him  by  his  adver- 
sary. But  the  account  did  not  say  to 
whom  nor  for  what  the  payments  were 
made,  nor  did  it  give  particulars  of 
time;  several  items  were  discredited, 
and  one  had  been  allowed  in  another 
and  distinct  account.  Chancellor 
Kent,  on  hearing  exceptions  to  the 
master's  report,  said:  "There  is  no 
doubt  of  the  general  rule,  that  when 
one  party  exhibits  a  paper  in  proof 
to  charge  his  opponent,  his  opponent 
is  entitled  to  use  it  in  his  discharge. 
But  it  does  not  follow  that  each  part 


480 


Evidence. 


[Chap.  16 


It  will  be  seen  that  th*  rule,  simple  as  it  appears,  is  not  with- 
out difficulty  in  its  practical  application.  It  should  be  stated 
that  it  applies  equally  to  written  and  verbal  adnvissions;  and, 
consequently,  where  a  defendant  has  rendered  a  debtor  and  credi- 
tor account  to  the  plaintiff,  which  the  latter  produces  in  proof  of 
his  demand,  it  will  be  equally  admissible  in  evidence  of  the  de- 


is  entitled  to  the  same  credit.  Tlie 
charge  may  be  so  clear  and  specific 
as  to  be  conclusive,  while  the  dis- 
charge is  so  loose  and  defective  as  to 
deserve  no  credit.  We  have  seen  that 
those  discharges  are  inaccurate  in 
some  instances:  that  they  have  no 
precision  or  uncertainty  as  to  place 
or  circumstance,  that  we  have  evi- 
dence of  the  allowance  of  part  on 
other  proof,  and  of  the  positive  in- 
iustice  of  other  parts;  and  we  are  jus- 
tified and  bound,  upon  all  sound  prin- 
ciples, to  reject  the  whole."  Method. 
Ep.  Ch.  et  al.  v.  Jacques  et  ah,  3 
John.  Ch.  (N.  Y.)  115-117.  Though, 
w^here  a  confession  or  declaration  is 
given  in  evidence,  a  court  and  jury 
may,  on  sufficient  ground,  believe  part 
and  disbelieve  another  part,  y<t  such 
parts  may  he^  distinct  and  relate  to 
different  matters  or  facts,  as,  "I  ac- 
knowledge that  /  borrowed  the  money, 
but  I  repaid  it."  Fox  v.  Lamson,  7 
N.  J.  Eq.  259. 

When  an  account  is  presented  to  a 
party,  containing  items  on  both  sides, 
and  showing  a  balance  against  him, 
and  he  answers,  "It  is  correct,  but  1 
have  an  oflfset,"  this  is  sufficient  to 
authorize  a  verdict  for  the  balance  ad- 
mitted to  be  due,  no  other  evidence 
of  the  set-otf  being  given.  Delamater 
V.  Pierce,  3  Den.  (N.  Y.)  315.  The 
whole  conversation  relating  to  the 
admission  may  be  given:  that  which 
tends  to  discharge  the  party  making 
the  admission,  as  well  as  that  which 
tends  to  charge  him.  Dorlon  v. 
Douglass,  6  Barb.  (N.  Y.)  451;  Coon 
V.  The  State,  13  S.  &  M.  246,  471; 
Duffield  V.  Cross,  12  111.  397  ;  Roberts 
V.  Gee,  15  Barb.  (N.  Y.)  449.  But 
the  referee  or  jury  is  not  bound  to 
give  equal  credit  to  every  part  of  the 
conversation  or  declaration.  Beares  v. 
Copley,  10  N.  Y.  93;  and  it  is  proper 
for  the  court  so  to  charge  the  jury. 


Barnes   v.    Allen,    30    Barb.    (N.    Y.) 
653. 

In     an     English     case,     Smith     v. 
Blandy,  Ry.  &  Mo.  257  ;  Cray  v.  Halls, 
cited  id.,  where  Abbott,  C.  J.,  left  the 
whole  of  a  conversation  to  a  jury  to 
consider    whether    the    facts    asserted 
by  a  party  in  his  own  favor  were  not 
true,    as   well    as   those   against    him. 
And   see   Remmie   v.   Hall,   Manning's 
N.   P.    (2d  ed.)    376,  cit.   3  M.  &  G. 
834,  in  an  action   for  goods  sold  and 
delivered,   one   of   the   plaintiff's   wit- 
nesses stated,  upon  cross-examination, 
that  he   had   heard   the   plaintiff  say 
that    the    goods    were    sold    under    a 
written   contract,  which   the   plaintitl 
.at   the    time    showed   the   wi'tness ;    a 
broker's   note   was   then   produced   by 
the  plaintiff's  counsel,  which  the  wit- 
ness said  was  the  paper  spoken  of.     It 
was   objected   that    the   broker's   note 
ought  not  to  be  received  as  evidence 
of  the  contract,  unless  the  broker  was 
called  to  prove  it.     But  the  objection 
was    overruled,    and    it    was    held    by 
Best,  C.  J.,  that  the  whole  of  what  a 
party  says  at  the  same  time  must  be 
given    in    evidence,    though    what    he 
says   in   his   favor   must   not  on   that 
account  be  taken  as  true,  but  must  be 
left,   with   all    the   circumstances,   for 
the  jury  to  consider  whether  they  be- 
lieve it  or  not.     And  in  another  case, 
(Randle  v.  Blackburn,  5  Taunt.  255. 
And  see  Thompson  v.  Austen,  2  D.  & 
R.  361;   Fletcher  v.  Froggatt,  2  C.  & 
P.  569;  Green  v.  Dunn.  3  C^mpb.  215; 
Smith  V.  Young.   1  Campb.  439;   Bar- 
i-ymore  v.   Taylor,   1   Esp.   325 ;   Com. 
Dig.,  tit.  Evidence,  B,  5 ;   12  Vin.  Ab., 
tit.    Evidence,   A,   23;    2   Ventr.    171; 
Cooper  V.  Smith,  15  East,  103),  it  was 
held  that  where  a  person  admitted  a 
claim,  but  at  the  same  time  set  up  a 
counterclaim,    the    statement    of    the 
counterclaim  was  admissible  to  prove 
not   only    its   existence,    but    also   its 
truth  and  correctness. 


Sec.  146.]  Admissions.  481 

fendant's  set-off/^  although  the  plaintiff  will  be  at  liberty,  while 
relying  on  the  creditor  side  of  the  account,  to  impeach  items  which 
appear  on  the  debtor  side.^^  If  the  admission  is  contained  in  an 
affidavit,  a  written  examination,^'^  an  answer  in  Chancery,  or  other 
document  complete  in  itself,  the  rule  at  common  law  is,  that  the 
whole  document  must  be  read,  although  the  jury  need  not  give 
equal  credit  to  every  part  of  it,  and  will  frequently  give  credence 
only  to  such  portions  as  make  in  favor  of  the  declarant  ;^^  and  so 
stringent  is  this  rule,  that  where,  on  exceptions  taken,  a  second 
answer  had  been  filed,  the  defendant  was  allowed  to  insist  upon! 
having  that  also  read,  in  order  to  explain  what  he  had  sworn  in 
his  first  answer. ^^  It  has  also  been  held  that  a  party,  against 
whom  an  answer  in  chancery  is  produced,  may  have  the  whole 
bill  read  as  part  of  his  adversary's  case,  on  the  ground  that  this 
is  like  the  ordinary  case  of  conversation,  where  the  answers  of  a 
party  cannot  be  given  in  evidence  against  him  without  also  prov- 
ing the  questions  which  drew  forth  the  answers.  The  jury,  how- 
ever, should  in  such  cases  be  warned  that  the  statements  in  the 
bill  are  not  admissions  of  the  facts  contained  therein,  it  being 
notorious  that  allegations  not  consistent  with  fact  are  frequently 
introduced  into  a  bill  for  the  sole  purpose  of  eliciting  truth  from 
the  opposite  party. ^°  Where  the  plaintiffs,  who  were  assignees  of 
a  bankrupt,  gave  in  evidence  an  examination  of  the  defendant  be- 
fore the  commissioners  as  proof  that  he  took  certain  property,  tlie 
court  held  that  they  thereby  made  his  cross-examination  evidence 
in  the  cause;  and  as,  in  this  cross-examination,  the  defendant 
had  stated  that  he  had  purchased  the  property  under  a  written 
agreement,  a  copy  of  which  was  entered  as  part  of  his  answer,  this 
statement  was  considered  as  some  evidence  on  behalf  of  the  de- 
fendant himself  of  the  ag-reement  and  its  contents ;  and  that,  too, 
although  the  absence  of  the  document  was  not  accounted  for,  and 
notice  not  been  given  to  the  plaintiffs  to  produce  it.^'-     So,  in  an 

"Handle    v.    Blackburn,    5    Taunt.  '*  Bermon  v.    Woodbridge,   2   Doug. 

245.  788 ;    Blount  v.   Burrow,  4  Brown,  C. 

"Rose   V.    Savory.    2    Bing.    N.    C.  C.  75. 

145:  2  Sc.  199.  S.  "C.  '' R-  v.  Carr,   1   Sid.  418;   B.  N.  P. 

"  In    Prince    v.    Samo.    7    A.    &    E.  237 :  Lord  Bath  v.  Bathersea,  5  Mod. 

630,  Coleridge,  J.,  asked  Avhether  the  10;  Lynch  v.  Gierke,  3  Salk.  154. 

question  had  ever  been  decided  as  to  ^^  Pennell   v.   Meyer,   2   M.   &.   Rob. 

depositions,  to  which  the  counsel  re-  98,  per  Tixdall,  C.  J.,  8  C.  &  P.  470, 

plied    that    no    express    decision    had  S.  C. 

been  found.  "  Goss  v.  Quinton,  3  M.  &  Gr.  825. 

31 


482 


Evidence. 


[Ch?p.  16 


action  against  a  sheriff,  where  an  under-sheriff's  letter  was  pro- 
duced bv  the  plaintiff  to  affect  the  defendant,  it  was  held  to  be 
some  evidence  also  of  certain  facts  stated  therein,  which  tended 
to  excuse  the  sheriff  ;^^  and  on  a  similar  principle,  where,  in 
order  to  fix  a  sheriff  in  an  action  of  trespass  against  him,  the 
plaintiff  put  in  his  warrant  under  which  the  seizure  was  made, 
and  which  recited  the  writ  of  f..  fa.,  the  court  held  that  this  re^ 
cital  was  some  evidence  of  the  writ,  and  consequently  tended  to 
protect  the  sheriff,  as  showing  that  the  seizure  was  made  by  the 
authority  of  the  law.^^ 

The  rule  originally  was,  that  where  the  admission  was  in  the 
course  of  a  conversation  in  which  several  distinct  matters  were 
discussed,  the  whole  conversation  was  admissible,  whether  it  re- 
lated to  the  admission  or  not;^*  but  the  unreasonableness  as  well 
as  injustice  of  this  rule  soon  became  obvious,  and  now  it  is  held 
that  only  that  part  of  the  conversation  which  explains  or  qualifies 
the  matter  before  the  court  is  admissible.^^ 


**Hayne9  v.  Hayton,  6  L.  J.  K.  B. 
(O.  S. )  231,  recognized  in  Bessey  v. 
Windham,  6  Q.  B.  172. 

"  Bessev  v.  Windham,  6  Q.  B.  166. 

"  The  Queen's  Case.  2  B.  &  B.  846. 

='  Prince  v.  Samo,  7  Ad.  &  El.  627. 

In  the  case  last  cited  an  action  was 
brought  for  malicious  arrest  on  a 
false  suggestion  that  money  was  lent 
by  the  defendant  to  the  plaintiff, 
when  in  fact  it  had  been  given  to  him. 
The  plaintiff  called  his  attorney  as  a 
witness,  who  happened  to  be  present 
at  the  trial  of  a  prosecution  for  per- 
jury, instituted  by  the  plaintifY 
against  a  witness  in  the  action  where- 
in he  had  been  arrested.  The  defend- 
ant's counsel  inquired  of  him,  in  cross- 
examination,  whether  the  plaintiff 
had  not,  on  the  trial  for  perjury, 
stated  that  he  himself  had  been  in- 
solvent repeatedly  and  remanded  by 
the  court.  This  question  was  not  ob- 
jected to.  On  his  re-examination  the 
same  witness  was  asked  whether  the 
plaintiff  had  not  also  on  that  occa- 
sion given  an  account  of  the  circum- 
stances out  of  which  the  arrest  had 
arisen,  and  what  that  account  was, 
for  the  purpose  of  laying  before  the 
jury  proof  that  the  arrest  was  with- 
out cause  and  malicious.  This  ques- 
tion, expressly  confined  to  that  pur- 


pose, was,  whether  the  plaintiff  did- 
not  say,  in  the  course  of  his  examina- 
tion, that  the  money  was  given  and 
not  lent.  To  this  question  the  de- 
fendant's counsel  objected,  upon  the 
ground  that  the  circumstance  of  the 
defendant  having  proved  one  de- 
tached expression  that  fell  from  the 
plaintiff  when  a  witness,  did  not  make 
the  whole  of  what  he  then  said  evi- 
dence in  his  favor.  Lord  Denmax,  C. 
J.,  at  the  trial  was  of  opinion  that 
the  witness  might  be  asked  as  to- 
everything  said  by  the  plaintiff,  when 
he  appeared  on  the  trial  of  the  in- 
dictment, that  could  in  any  way  qual- 
ify or  explain  the  statement  as  to- 
whieh  he  had  been  cross-examined; 
but  that  he  had  no  right  to  add  any 
independent  history  of  transactions 
icholly  unconnected  with  it.  The- 
court  afterwards  held  that  the  line 
had  been  correctly  drawn  by  hi.s 
Lordship  at  the  trial. 

In  this  case,  the  dictum  of  Abbott, 
C.  J.,  in  the  Queen's  Case,  just  re- 
ferred to,  was  cited,  and  Lord  Den- 
man,  C.  J.,  in  giving  the  judgment  of 
the  court,  observed,  with  regard  to 
that  dictum:  "We  forbear  from  en- 
tering into  a  detailed  examination  of 
the  doctrine  there  laid  down.  We 
have-  considered  it  repeatedly  with  alL 


Sec.  147.]  Admissions.  48S 

Upon  a  review,  therefore,  of  the  authorities,  the  correct  rule 
seems  to  be  as  follows :  That  whej-e  a  statement,  forming,  a  part 
of  a  conversation,  is  given  in  evidence,  whatever  was  said  by  the 
same  person  in  the  same  conversation,  tlmi  would  in  any  way 
qualify  or  explain  that  statement,  is  also  admissible;  hut  de- 
tached and  independent  statements,  in  no  tvay  connected  with  the 
statement  given  in.  evidence,  are  not  admissible;  and  that  there 
is 'no  difference  in  this  respect  between  statements  made  in  con- 
versation by  a  party  to  the  suit,  and  those  made  by  a  third  party. 

Sec.  147.  Weight  to  be  given  to  Admissions  or  Declarations. 

Admissions  or  declarations  may  be  very  weak  as  evidence^  or 
very  strong,  according  to  the  circumstances  under  which  they 
were  made,  and  in  all  cases  these  circumstances  should  be  care- 
fully scanned.^  Such  admissions  are  only  admissible  when  parol 
evidence  is  admissible  to  establibh  the  fact.^  An  admission  made  by 
one  while  insane  cannot  be  the  foundation  of  a  decree  against 
him.*  An  admission  by  way  of  a  demurrer  to  a  plea  is  just  as 
admissible  as  though  admitted  ore  tenus  before  a  jury.^  It  is  not 
essential  that  the  party  making  the  admission  should  have  per- 
sonal knowledge  of  the  facts  admitted.  If  he  believes  a  fact  to 
be  true  upon  evidence  sufficient  to  convince  him  of  its  truth,  his 
statement  of  such  fact,  if  against  his  interest,  is  evidence  against 
him ;  and  though  of  an  unsatisfactory  character,  it  is  still  com- 

the  diffidence  inspired  by  such  an  au-  ness  for  the  purpose  of  letting  in  the 

thoritv,   but   we   cannot   assent  to  it.  whole  of  what  he  himself  had  stated 

We  will   merely   observe   that   it   was  in  a  conversation,  see  S.  B.  &  B.  294, 

not  introduced"  as   an"  answer   to  any  296,  and  supra. 

question    proposed    by    the    House    of  '  Dupre  v.  McNight,  6  La.  An.  146; 

Lords,  and  may,  therefore,  be  strict-  Printup    v.    Mitchell,     17     Ga.     558; 

ly  regarded  as  extra-judicial ;   that  it  Horner   v.    Speed,   2    P.   &   H.    (Va.) 

was  not  necessary,  as  a  reason  for  the  616;  Vaugh  v.  Haim,  6  B.  Mon.  (Ky. ) 

answer  to  the  question  that  was  pro-  338:  The  Latty  Ole,  U.  S.  Adm.  329; 

posed ;  that  it  was  not  in  terms  adopt-  Parker  v.  McNeill,  20  Miss.  355. 
ed  by  Lord  Eldon,  or  any  other  of  the  ^  Eaton     v.     Welsh,     29     Ga.     443; 

judges    who    concurred;    that    it    was  Wittick   v.   Kiffer,  31   Ala.    199;    Fid- 

cxpressly  denied  by  Lords  PvEDESDAI.e  ler  v.  McKinley,  21   111.  308;    Chand- 

and  Wynford;    and  that  it  'does  not  ler    v.     Schoonmaker,     14    Ind.    324; 

rest  on  any  previous  authority.     W<;  Hoper  v.  Evans,  9  Miss.  195. 
ought  to  add  that,  in  our  opinion,  the  ^  Bivins    v.    McElroy,    11    Ark.    23; 

reason  of  the  thing  would  rather  go  Brooks  v.   Ishell,  22  Ark,  488. 
to  exclude  the  statements  of  a  party  *  Hoffman    v.    Overbey,    137    U.    S. 

making  declarations  which  cannot  be  465,  471,   11   S.  Ct.   157. 
disinterested."  The  question  had  refer-  =  Coffin  v.  Knott,  2  Greene   (Iowa), 

ence  to  the  re-examination  of  a  wit-  582. 


484  Evidence.  [Chap.  16 

petent.^  They  may  be  sufficient,  although  they  are  not  conclu- 
sive evidence  against  him/  and  although  they  have  been  drawn 
from  him  by  false  suggestion/  but  not  where  they  were  made 
under  a  misapprehension  of  his  legal  rights,  where  they  go  to  de- 
feat or  establish  such  right.^ 

Representations  made  by  a  party  to  another  person,  wuth  a 
view  to  gain  credit  or  advantage,  are  admissible  in  evidence 
against  him,  and  are  conclusive.  But  such  representations  are 
not  conclusive  against  him  where  there  is  no  breach  of  good  faith 
in  receding  from  them.^" 

If  a  party  to  a  suit,  whether  upon  the  stand  as  a  witness  or 
otherwise,  is  shown  a  paper  containing  written  statements  ma- 
terial to  the  issue  and  adverse  to  his  interests,  and  he,  after  exami- 
nation, admits  that  the  statements  therein  contained  are  true,  the 
paper  containing  the  statements  may  go  to  the  jury,  in  connection 
with  his  testimony  or  statements,  as  the  admission  of  the  party, 
and  it  makes  no  diiference  when,  where  or  by  whom  the  statement 
was  thus  written." 

In  an  action  to  recover  for  goods  sold,  proof  of  an  admission 
by  the  buyer  of  the  correctness  of  the  account  against  him,  there 
being  no  dispute  on  the  trial  as  to  the  amount,  is  proof  of  the  sale 
and  delivery  of  the  goods/^ 

An  admission  by  one  during  his  tenancy,  under  whom  one  of 
the  plaintiffs  claim,  affects  such  plaintiff  only.-^^  By  the  common 
law,  whenever  the  act  or  declaration  of  a  party  then  interested 
would  be  evidence  against  himself,  they  will  be  evi- 
dence against  his  subsequent  assigTiee,  or  party  claim- 
ing under  hini.^*  But  the  expressdon  of  an  opinion  by  one 
that  he  is  liable  for  a  certain  debt  is  not  evidence  of  his 
liability.^^  Nor  can  any  presumption  ef  a  fact  be  drawn  from 
it,  where  the  fact  is  expressly  denied. -^^     The  mere  admission  of 

«Sparr   v.    Wellman.    11    Mo.    230;  Bosw.    (X.  Y.)    683;   Griffin  v.  Keith, 

Kitchens  v.  Robbi«s,  29  Ga.  713.  1  Hilt.   (N.  Y.)   .58. 

'Cafferatta    v.    Cafferatta,    22    Mo.  ^=  Grant  v.  Levan,  4  Penn.  St.   393. 

235.  "  Snelgreve    v.    Martin,    2    MeCord 

"Higgins  V.  Bellinger,  22  Mo.   397.  (S.  C),  241;   Ten  Eyek  v.   Runk,   26 

»Moo"re  v.  Hitchcock,  4  Wend.    (N.  N.  J.  L.  513. 

Y.)  292.  '^Berrvhill    v.    McKee,    1    Humph. 

'"Tufts    V.    Hayes,    5    N.    H.    452;  (Tenn.)    31. 

Scammon  v.   Scammon,   33   N.   H.   52.  '"Clarendon  v.  Weston,  16  Vt.  332; 

"  Rich  V.  Flanders,  39  N.   H.   304.  Brown   v.   Munger,   id.    12;    Smith   v. 

"New   York    Ice   Co.   v.    Parker,    3  Jones,    15  Johns.    (N.  Y.)    229;    Rip- 
lev  V.  Paige,  12  Vt.  353. 


Sec.  148.]  Admissions.  4:^5 

a  "debt"  is  not  sufficient  to  cliarge  the  defendant  with  the  whole 
demand  of  the  plaintiff;  but  the  amount  must  be  proved.'' 

Sec.  148.  Where  and  How  a  Party  may  Discredit  his  Admis- 
sions. 
A  party  cannot  rebut  the  evidence  of  his  own  admissions  by 
different  declarations  made  at  other  times/  but  he  may  show  that 
they  were  not  true.     When  an  admission  is  offered  against  a  party 
he  should  be  allowed  to  explain  it.     So  where  a  letter  is  proved, 
in  which  one  admits  certain  claims  to  be  due,  he  has  a  right  to 
explain  why  he  did  not  mention  certain  counter  claims  he  had. 
The  declarations  of  a  party  that  he  had  promised  to  a  stage  line 
four  horses  are  not  evidence  sufficient  to  warrant  the  inference 
that  he  was  a  joint  proprietor,  and  it  is  competent  to  repel  all 
inferences  to  his  prejudice  by  showing  that  he  actually  sold  three 
horses  to  the  agent  of  the  ostensible  proprietor  of  the  line.^ 

Although  the  declarations  or  admissions  of  a  party  are  evi- 
dence against  himself,  yet  they  do  not,  when  offered,  justify  him 
in  introducing  proof  of  his  counter-declarations,  made  at  a  differ- 
ent time,  unless  the  latter  form  a  part  of  the  res  gestae.^  He  may 
show  that  he  made  them  jocularly.^ 

The  admission  of  a. fact  when  not  under  such  circumstances 
as  to  work  an  estoppel  against  the  party  making  it,  and  when  it  is 
shown  to  have  been  made  by  one  who  could  not  have  known  the 
fact  from  his  OAvn  knowledge,  is  but  evidence  of  the  existence  of 
that  fact,  and  may  be  denied  by  satisfactory  testimony  of  wit- 
nesses who  base  their  evidence  upon  personal  knowledge.^  A 
party  is  at  liberty  to  explain  them,  or  show  that  he  was  mistaken, 
and  this,  though  the  admissions  were  under  oath.'^  Or  that  they 
were  untrue  or  made  under  a  mistake,  unless  another  has  acted, 

"Quarles  v.  Littlepage,  2  H.  &  M.  2  Eich.    (S.  C.)    176;  Jones  v.  State, 

(Va.)   401;   Douglass  v.  Davie,  2  Mc-  13^  Tex.   168.                       ,xt   v     ion^\ 

Cord    (S    C  )     219;   Harrison  v.  Mc-  =  Chamberlain  v.  Iba,  (N.  Y.,  1905), 

Kinney  "2  Bay    (S.  C),  412.  74  N.  E.  481. 

'  Lee'v   Hamilton,  3  Ala.  529;  Hunt  » Anderson  v.  Snow,  9  Ala,  247. 

V.   Roylance,   11    Cush.    (Mass.)    117;  *  Roberts  v.   Trawick    22   Ala    490. 

Clark  V.  Huflfaher,  26  Mo.  264;  Tuck-  =  Beebe  v.  De  Baaii,  8  Ark.  510. 

er    V.    Frederick,    28    Mo.    574;    Mc-  « WjTin  v.  Garland.  16  Ark    440 

Peake    v.     Hutchinson,     5     S.    &    R.  ^Carter    v.    Bennett,    4    Fla.    283; 

(Penn  )    295:    Snowden  v.  Pope,  Rice  Stewart     v.     Connor,     13     Ala.     J4; 

(S    C)    Ch     174;    Davis   v.   Kirksey,  Houghtaling  v.  Kelterliouse,   1   Park. 

^            '    ^    •          •  ^._  Y.)   Cr.  241. 


486  Evidence.  [Chap.  16 

relying  on  them,  so  as  to  estop  them.^  But  a  judicial  admission, 
solemnlif  made,  cannot  he  denied.^  So  where  lien  claims  were 
conceded  to  be  valid  in  the  lower  court  the  concession  cannot  be 
withdrawn  on  appeal/'^  But  although  an  answer  filed  in  the 
name  of  a  party  in  a  bankruptcy  petition  is  admissible  in  evidence 
in  aniother  proceeding  against  him,  it  may  be  controlled  by  evi- 
dence that  he  never  in  fact  signed  or  authorized  it." 

Notwithstanding  the  admission  by  the  defendants  of  a  judg- 
ment as  evidence  from  which  the  jury  might  find  a  verdict  for 
the  whole  amount  of  the  claims  sued  on,  but  not  conceding  it  to 
be  oonclusive  evidence,  it  is  competent  for  them  to  claim  any 
credit  to  which  they  might  show  themselves  entitled  by  proof. ^' 
Verbal  admissions,  hastily  made  without  investigation,  and  in 
ignorance  of  material  facts  of  a  case,  are  not  binding  where  the 
facts  to  the  contrary  are  unequivocally  established.^^  Where  the 
general  manager  and  president  of  a  railroad  has  stated  that  its 
engine  set  a  certain  fire  the  railroad  may  still  show  that  he  was 
mistaken." 

When  a  party  admits  a  letter  or  other  document  to  be  genuina 
by  using  it  as  such,  he  cannot  afterwards  deny  its  authenticity 
when  his  opponent  desires  to  use  it.^"  Where  an  admission  was 
on  the  authority  of  a  decision  which  has  been  overruled,  and  was 
to  the  prejudice  of  the  party  making  it,  he  is  held  not  to  be  bound 
by  it}' 

Evidence  that  a  party  is  of  poor  health  and  subject  to  depres- 
sion of  spirits  is  admissible  to  invalidate  his  declarations,  at  such 
a  time,  as  to  his  affairs. ^^  So  it  may  be  showTi  that  the  admis- 
sion was  fraudulently  or  collusively  made,  and  in  that  event  it  is 
not  entitled  to  any  weight  with  the  jury.^^ 

«Ray  V.  Bell,  24  III.  444;  Young  v.  "Martin  v.  Peters,  4  Robt.   (N.  Y.) 

Foote,  43  111.  33;   Pecker  v.  Hoit,   15  434. 

N.  H.  143;  Rice  v.  Railroad  Bank,  7  "Cheek  v.  Oak  Grove  Lumber  Co., 

Humph.    (Tenn.)    39.  134  X.  C.  225,  46  S.  E.  488. 

°Gridley  V.  Connor,  4  La.  Ann.  416;  "Robeson    v.    Schuylkill   Na^.    Co., 

Edson  V.  Freret,  11  id.  710.  3  Grant    (Penn.)    Cas.   186. 

"Hensel  v.  Johnson,  94  Md.  729,  51  ^^  Hays  v.  Cage,  2  Tex.  501. 

A.  575.  "  Brackett  v.  Wait,  6  Vt.  411. 

"Nicholson  v.  Snyder,  97  Md.  415,  "  Ramsbottom  v.  Phelps,   l8  Conn. 

55  A.  484.  486.  278. 

"Matthews  v.  Dare,  20  Md.  248. 


Sec.  149.]  Admissions.  487 

Sec.  149.  Parties  to  Negotiable  Paper  generally. 

In  an  action  upon  a  note,  the  declarations  of  a  nominal  plain- 
tiff, made  before  he  parted  with  his  interest  in  the  note,  are  ad- 
missible in  evidence;  and  without  proof  of  the  time  when  he 
parted  with  his  interest,  his  declarations,  made  at  any  time  before 
suit  brought,  are  admissible.^  This  is  upon  the  principle  that  the 
admission  is  made  by  a  privy  in  estate,  but  is  confined  entirely 
to  admissions  made  while  the  proprietary  interest  esxisted.^  Thus, 
a  declaration  by  a  testator  that  certain  notes,  which  are  particu- 
larly specified,  were  advancements  to  one  of  his  children,  is 
against  his  interest,  although  the  notes  were  out  of  date,  and  is 
consequently  admissible  in  evidence  against  the  child's  represenr 
tatives.^  But  the  declarations  of  a  merchant's  clerk,  made  to  a 
notary  public,  cannot  be  admitted  in  evidence  to  show  who  was 
the  holder  of  a  note,  unless  such  declarations  were  immediately 
•connected  with  the  solemnity  of  protesting."*  Nor  is  tlie  accept- 
ance of  security  for  all  notes  on  which  a  party  may  have  become 
liable,  evidence  that  he  authorized  the  signing  of  his  name  to 
notes  not  particularly  specified  in  the  deed,  nor  identified  as  hav- 
ing been  secured  thereby.  An  admission  by  a  party  that  he  has 
been  fully  indemnified  means  indemnified  against  legal  liabili- 
ties; and  even  though  he  knew  at  the  time  that  the  person  from 
whom  he  received  the  security  had  forged  his  signature,  it  is  not 
to  be  construed  as  applicable  to  the  forged  signature.^  In  an  ac- 
tion by  an  indorsee  of  a  negotiable  note,  where  the  plaintiff  is 
shown  to  have  received  it  of  the  former  holder  after  it  became 
due,  and  he  fails  to  show  that  he  paid  value  for  it,  the  suit  is  pre- 
sumed to  be  prosecuted  for  the  benefit  of  the  former  holder ;  and 
his  declarations  made  while  he  held  the  note,  and  after  it  became 
payable,  that  it  was  given  upon  an  illegal  consideration,  are  ad- 
missible for  the  defendant.'^  But  evidence  of  an  admission  by  the 
defendant  that  he  had  given  the  plaintiff  a  note  of  the  same 
amount  with  the  note  produced  at  the  trial,  which  he  would  pay 
if  time  were  given  him,  is  not  sufiicient  evidence  of  the  execution 

^  Sally  V.  Gooden,  5  Ala.  78;  Clewa  *  Burt  v.  Gwinn,  4  H.  &  J.    (Md.) 

T.  Kehr,  90  N.  Y.  633.  507. 

^  Smith  V.  De  Ruitz.  R.  &  M.  212;  'Walters  v.  Munroe,  17  Md.   150. 

Phillips  V.  Cale,  10  Ad.  &  El.  106.  'Brisbane  v.  Pratt,  4  Den.   (N.  Y.) 

'West  V.  Bolton,  23  Ga.  531.  63. 


488 


Evidence.  [Chap.  10- 


of  the  note  produced.'     Xor  in  a  suit  by  the  holder  against  the 
acceptor  of  a  draft  payable  to  a  certain  person  or  his  order,  can 
the  plaintiff  prove  his  own  declarations,  or  the  admission  of  any 
one  who  was  not  a  party  nor  a  witness  in  the  cause ;  nor  is  the 
mere  receipt  of  such  person,  stating  the  fact  that  the  draft  was 
made   for  his    accommodation,   competent  testimony.     But    any 
evidence  given  tending  to  show  that  a  draft  was  accommodation 
paper  should  be  submitted  to  the  jury.*     The  declarations  of  a 
deceased  party  to  a  note  are  inadmissible,  although  he  might  be 
a   witness  if  living.^     An  acknowledgment  made  by  the  maker 
of  a  note  to  one  who  once  held  it  as  indorsee,  will  inure  to  the 
benefit  of  the  holder.^"     Thus,  in  an  action  against  three  joint 
ma»kers  of  a  promissory  note,  the  admissions  of  one  of  the  de- 
fendants was  held  competent  evidence  against  his  co-defendants, 
at  least  imtil  the  inferences  arising  from  the  face  of  the  note  are 
rebutted,  and  it  is  shown  that  the  party  making  the  admissions 
is  not  jointly  interested  with  the  others,"  even  though  the  ad- 
mission was  made  to  the  payee  long  before  the  note  was  pur- 
chased by  the  plaintiff  who  brings  suit  upon  it.^     In  an  action 
on  a  due  bill  by  a  payee,  a  paper  signed  by  the  plaintiff,  admit- 
ting that  he  had  not,  then  or  at  any  time,  any  interest  in  the 
due  bill,  that  it  was  made  payable  to  him  without  his  knowledge 
or  consent,  and  that  he  did  not  know  the  OAvner,  and  certifying 
that  the  maker  had  informed  him  that  the  bill  was  given  for 
money  lost  at  cards,  is  admissible  for  the  defendant  as  an  ad- 
mission of  a  party  in  interest  or  a  trustee  or  agent  binding  ujwn. 
the  real  owner  in  the  absence  of  any  evidence  that  he  was  not 
the  real  owner. ^^     So  in  an  action  upon  a  note,  which  matured 
after  the  decease  of  the  indorser,  against  his  administrator,  it  is 
competent  to  prove  notice  by  proving  the  admissions  of  the  ad- 
ministrator, unless  the  administrator  is  present  and  is  w-illing 
to  testify  to  the  point.^*     But  an  admission  by  the  party  liable 
upon  a  sealed  bill,  of  a  balance  due  on  it,  is  not  an  acknowledg- 
ment of  its  execution;  and,   if  it  were,  would  not  obviate  the 

■'Palmer   v    Manning',   4   Den.    (N.  Bound  v.  Lathrop,  4  Conn.  336;   Bar- 

Y.)    131.  '  rick  v.  Austin,  21  Barb.   (N.  Y.)   241. 

MYilt' V.   Snyder,   17  Penn.   St.   77.  "  Cooper  v.  Hocking  Valley  Nation- 

» Duncan  v.  Seaborn,  1  Rice  (S.  C),  al  Bank,  21  Ind.  App.  358,  50  X.  E. 

27.  775,  69  Am.  St.  Rep.  365. 

"McRae  v.  Kennon,   1  Ala.   295.  "  Hogan  v.  Sherman,  5  Mich.  60. 

"Camp     V.     Dill,     27     Ala.     553;         "Duncan  v.  Watson,  10  Miss.  121. 


Sec.  149.]  Admissions.  489 

necessity  of  proving  that  fact  by  the  subscribing  witness,  or  ac- 
counting for  his  absence.^^  But  proof  that  the  defendant  m 
an  action  on  a  note  said,  on  being  shown  tlie  note,  that  "  it  was 
right,"  and  he  would  not  object  to  "  its  coming  in  on  the  trial," 
is  sufficient  to  authorize  the  admission  of  the  note  in  evidence.'^ 

Where  the  defense  to  an  action  upon  an  assigned  note  is,  that 
the  defendant  was  a  mere  accommodation  drawer,  an   account, 
which  had  been  exhibited  by  the  party  in  interest  on  another 
trial  between  himself  and  others,  explaining  the  origin  of  the 
note,  and  admissions  made  by  him  at  the  same  trial,  are  proper 
evidence  for  the  jury;  but  not  his  attorney's  letters  relative  to 
this  previous  trial."    Nor  are  the  declarations  of  the  maker  of  ^  a 
note  given  for  an  old  one  at  the  time  of  making  the  note,  admis- 
sible to  affect  his  legal  liability  on  the  note;  but  they  are  ad- 
missible to  show  whether  the  new  note  is  entirely  a  new  contract, 
or  an  extension  of  the  old  one.'^     It  is  not  conclusive  against  the 
maker  of  a  note  that  he  has  acknowledged  that  the  signature  to  it 
was   his.'^      The   admissions   of   the   maker   are   not   admissible 
against   an   indorser,   even  though   he  indorsed  the  note   at  its 
inception  as  promisor.^^    Nor  are  the  admissions  of  the  maker  of 
a  note  admissible  in  an  action  by  the  payee  against  the  surety 
when  such  admissions  were  made  in  the  absence  of  the  surety.^^ 
In  an  action  by  the  pawnor  of  a  note  more  than  six  years  old, 
to  recover  damages  of  the  pawnee  for  not  returning  it  after  the 
debt  for  which  it  was  pledged  was  paid,  the  defendant  cannot 
give  in  evidence  the  declaration  of  the  maker  that  nothing  was 
due  thereon  to  the  plaintiff. ^^ 

Where  evidence  has  been  introduced  to  show  that  a  note  was- 
one  of  several  given  by  a  person  since  deceased,  in  pursuance  of  a 
general  design  to  settle  his  estate,  declarations  of  the  maker  in 
relation  to  the  consideration  of  such  notes  made  a  few  days  after 
they  were  given,  are  incompetent."^  Nor  in  an  action  against 
one  of  several  joint  makers  are  the  statements  of  another  of  the 

i^Hogland   v.    Sebring,   4  N.   J.   L.  ^»  Baker  v.  Briggs,  8  Pick.    (Mass.) 

105  ^"^" 

^'''Suydam   v    Combs,    15    N.    J.    L.  ^^  Dexter     v.     Clemens,      17      Pick. 

133       "^  (Mass.)    175. 

"Igleh^rt  V.  Jernegan,  16  111.  513.  "Thomas     v.     Waterman,     7     Met. 

"Nutter  V.  Stover,  48  Me.   163.  (Mass.)    227. 

'"Hall  V.  Huse,  10  Mass.  39;  Salem  "Hubbard     v.      Barker,      1      Allen 

Bank  v.  Gloucester  Bank,  17  id.  1.  (Mass.)    99. 


490  Evidence.  [Chap.  16 

makers  admissible  as  evidence  for  the  defendant,  when  objected 
to  by  the  plaintiff.^*  But  although  a  general  partnership  between 
two  is  not  established  by  the  admission  of  one  of  the  alleged 
partners,  yet  where  two  are  sued,  as  co-promisors,  \\\x>u  a  note 
signed  by  one,  and  there  is  proof  of  an  admission  of  liability  by 
the  other,  such  admission  is  evidence  tliat  the  signing  party  was 
the  agent  to  make  the  promise."'' 

Where  one  of  two  defendants,  sued  jointly  on  a  note,  pleads 
and  proves  his  discharge  in  bankruptcy,  evidence  of  his  admis- 
sions and  declarations,  made  while  he  was  in  fact  insolvent,  but 
before  he  obtained  his  discharge,  is  admissible,  notwithstanding 
he  may  be  the  principal  on  the  note,  and  the  other  defendant  the 
surety.^® 

Admissions  made  by  the  payee  of  a  note,  through  whom  the 
plaintiff  derives  title  as  indorsee,  are  not  evidence  to  charge  the 
maker,  although  his  admission  made  on  a  previous  day,  in  dis- 
charge of  the  maker,  had  been  given  in  evidence  by  the  latter; 
the  latter  admissions  not  being  made  in  the  same  conversation." 

In  an  action  brought  in  the  name  of  the  payee  of  a  promissory 
note  not  negotiable,  for  the  benefit  of  the  assignee,  against  the 
maker,  the  declarations  of  the  payee,  made  after  the  assignment, 
and  notice  thereof  to  the  maker,  are  not  admissible  in  favor  of 
the  defendant.^^  Xor  in  a  suit  by  the  assignee  of  the  payee  of  a 
promissory  note  can  the  defendant  give  evidence  of  declarations 
made  by  the  payee,  after  his  assignment,  prejudicial  to  the  in- 
terests of  the  plaintiff. ^^  Xor  in  the  case  of  commercial  paper, 
negotiated  before  due,  are  the  admissions  of  the  payee  admissible 
to  impeach  the  consideration.^*^  But  declarations  by  the  payee 
of  a  note,  executed  by  a  married  woman  and  transferred  before 
maturity,  that  he  had  taken  it  for  her  husband's  debt,  are  ad- 
missible against  the  indorsee. ^^ 

Admissions  made  by  the  payee  of  a  negotiable  note,  made 
while  he  retains  it  in  his  possession,  are  admissible,  although  he 
may  previously  have  written  thereon  his  indorsement  to  a  third 

"Nve  V.  Grubbs,  16  Miss.  643.  *' Scripture  v.   Newcomb,    16   Conn. 

'^Painter  v.   Austin,   37    Penn.    St.  588. 

458.  "  Fleming    v.    Xewman,    5    Blackf. 

="  Brown  v.  Hunger,  16  Vt.   12.  (Ind.)    220. 

"  Perry    v.    Graves,     12    Ala.     246.  '"  Stoner  v.  Ellis.  6  Ind.  152. 

See,    also.   Russell    v.    Doyle.    15   Me.  ^'  Pilcher  v.  Kerr,  7  La.  Ann.  144. 
112;   Clark  v.  Peabody,  21   id.  500. 


i$ec.  150.J  Admissions.  491 

person,  in  whose  name  the  action  is  brought.^"  So,  in  an  action 
by  an  indorsee  against  the  maker  of  a  note  transferred  when 
overdne,  the  dechirations  of  the  indorsee  may  be  given  in  evidence 
by  the  maker ;  but  if  he  elects  to  call  him  as  a  witness,  he  waives 
his  right  to  give  his  declaration  in  evidence.^^  Declarations  by 
the  payee  of  a  promissory  note  to  the  attesting  witness,  at  the  time 
of  his  attestation,  but  in  the  absence  of  the  maker,  are  not  admis- 
sible against  the  maker  to  explain  the  payee's  motive  in  wishing 
to  have  it  attested.^''  But  declarations  made  by  the  payee  of  a  note 
while  he  was  the  owner  are  not  admissible  to  affect  one  to  whom 
he  subsequently  transfers  it.^^  Thus,  in  a  suit  by  a  bank  against 
the  payee  and  indorser  and  an  accommodation  indorser  of  a 
promissory  note,  the  dispute  being  as  to  the  object  of  the  note, 
and  for  what  liabilities  it  was  intended  as  collateral,  admissions 
made  by  the  former  are  not  admissible  as  against  the  latter.^^ 
But  in  an  action  upon  a  note,  where  the  signature  is  denied,  the 
defendant  may  show  the  declarations  of  the  plaintiff  on  the  occa- 
sion of  taking  the  note,  and  then  prove  such  declarations  to  be 
false.^^ 

Where  a  promissory  note  becomes  the  property  of  one  not  a 
party  to  it  and  this  is  known  to  the  maker,  and  the  holder  com- 
mences an  action  upon  the  note  in  the  name  of  the  payee,  the 
maker  cannot  give  in  evidence  admissions  made  by  the  payee  sub- 
sequent to  the  commencement  of  the  suit.^* 

Sec.  150.  Admissions  by  an  Indorser. 

An  admission  by  an  indorser  that  he  indorsed  a  draft  drawn 
by  the  defendant,  for  a  certain  sum,  at  a  certain  time,  the  sum 
and  time  corresponding  with  the  draft  in  suit,  is  prinm  facie 
sufficient,  in  an  action  against  him  thereon,  to  establish  the  fact 
that  he  indorsed  the  draft  in  suit.^  So  the  insolvency  of  the 
maker  of  a  note  may  be  established,  in  an  action  against  the  in- 

5==  Whitier  v.  Vose,  16  Me.  403.  457;    Washburn   v.   Ramsdell,    17   Vt. 

^^  Merrick  v.  Parkman,  18  Me.  407.  299. 

^*  Lincoln     v.     Lincoln,      12      Gray  '^  Highland      Bank      v.      Wynkoop, 

(Mass.)    45.  Hill  &  D.  Supp.   (N.  Y.)    243. 

55  Beach  V.    Wise,    1    Hill     (N.  Y.)  =^  Depue  v.   Place,   7   Penn.   St.   428. 

612;   Paige  v.  Cagwin,  7  id.  361;   Os-  ''Hough  v.   Barton,  20  Vt.   455. 

born  V.  Bobbins,  37  Barb.   (N.Y.)  481;  '  Hyer   v.   Smith,   3   Craneh    (U.   S. 

Crayton  v.  Collins,  2  M'Cord    (S.  C.)  C.  C.)  437. 


492  Evidence.  [Chap.  16 

dorser,  by  the  latter's  admissions  to  that  effect.^  Tbe  admission 
of  an  indorser  after  a  note  is  overdue,  made  to  an  indorsee,  that 
he  knew  that  no  demand  had  been  made  upon  the  maker,  and  a 
promise  made  bv  him  to  pay  the  note  notwithstanding  such  omis- 
sion, is  admissible  in  favor  of  a  subsequent  indorsee,  in  an  action 
brought  by  him  against  the  indorser.^  In  an  action  by  the  in- 
dorser of  a  dishonored  bill  against  the  acceptor,  admissions  made 
by  the  indorser  while  he  owned  the  bill  are  admissible  in  favor 
of  the  acceptor.^  But  admissions  made  by  the  indorser  of  a  note 
or  bill  which  are  not  known  to  the  indorsee  cannot  be  used  in  evi- 
dence against  hira.^  The  declaration  of  an  indorser  that  the 
maker  told  him  that  payment  had  been  duly  demanded  of  him 
is  not  admissible  to  establish  the  fact  of  demand  and  notice;® 
nor  are  his  admissions  affecting  the  validity  of  the  note  ad- 
missible, although  it  is  shown  that  he  still  retains  an  interest  in 
the  note.^  But  the  admissions  of  an  indorser  or  assignor  of  a 
note,  TYiade  at  a  time  when  he  had  an  interest  and  right  of  action 
therein,  are  admissible.^  But  admissions  made  by  him  after  his 
interest  in  the  note  has  ceased  are  not  admissible,  as  this  would 
place  it  within  the  power  of  a  person  to  defeat  the  rights  of 
another  by  a  mere  naked  statement,  without  the  sanctity  or  re^ 
sponsibilities  of  an  oath.^ 

Sec.  151.  Admissions  made  by  a  Former  Owner  of  a  Note. 

Admissions  made  by  the  holder  of  a  note,  before  it  was  due 
and  before  indorsement,  and  which  Avas  negotiated  before  it  was 
due,  are  not  admissible  against  the  indorser,^^  unless  he  had  ex- 
press notice  of  the  defects  to  w^hich  the  admis'sion  relates  at  the 
time  w^hen  it  was  indorsed  to  him.^^  But  when  the  note  was 
overdue  at  the  time  of  its  indorsement,  declarations  of  a  prior 
holder,  made  ivhile  he  held  the  note,  after  it  was  due,  are  ad- 
missible in  evidence  to  show  payment  to  such  prior  holder  or  any 
right  of  set-off  which  the  maker  had  against  him.     But  such  dec- 

'Raplee  v.  Morgan,  3  111.  561.  "Lester  v.  Baker.  G  Blackf.    (Ind.) 

'Rogers  v.  Hackett,  21   X.  H.   100.  439:  Porter  v.  Rea.  6  Mo.  48;  Bartlett 

*  Shirley  v.  Ladd,  9  Me.  83.  v.  Marshall,  2  Bibb   (Ky.)   467;  Mat- 

^Blancjour  V.  Tutt,  32  Mo.  576.  thews  v.  Houghton.  10  Me.  420. 
^  Tamer  v.  Dunell,  9  Mass.  332.  "  Drummond     v.     Smith,     3     Head. 

^Butler  v.  Damon,   15  Mass.  223.  (Tenn.)   389. 

'Abbott  V.  Muir,  5  Ind.  444;  Will-  '^  Glunton  v.  Griggs,  5  Ga.  424. 

iams  V.  Judy,  8  111.  282. 


Sec.  151.]  Admissions.  4:^3 

larations  made  by  the  holder  before  he  took  the  note  are  inad- 
missible. So  such  declarations  made  by  the  holder  after  assign- 
ing the  note  to  one  fronv  whom  the  plaintiff  since  took  it  are  inad- 
missible, unless  the  assignment  was  conditioned  to  be  void  upon 
the  payment  to  the  assignor  of  a  less  sum  than  the  amount  due  on 
the  note,  in  which  case  the  declarations  are  admissible  in  evidence 
for  the  defendant  to  the  extent  of  the  interest  remaining  in  the 
prior  holder.' 

As  a  general  rule,  admissions  made  by  a  person  after  he  has 
parted  with  his  interest  in  a  bond,  note  or  other  security,  cannot 
be  given  in  evidence  in  prejudice  of  the  assignee.*  But  declara- 
tions of  a  former  holder  of  a  bill  transferred  to  the  plaintiff  after 
dishonor,  are  competent  to  show  that  before  such  transfer  the  de- 
fendants were  discharged  from  liability.^  Although  it  is  gener- 
ally true  that  the  declarations  of  a  former  holder  of  a  bill,  made 
while  it  was  in  his  hands,  are  not  admissible  against  a  party  who 
took  it  bona  fide,  in  the  course  of  business,  before  it  became  due, 
yet  ivhere  the  defense,  in  an  action  hy  the  indorsee  against  the 
acceptoi^  of  a  hill,  is  that  the  acceptance  was  procured  by  fraud, 
and  was  without  consideration,  and  in  support  of  this  defense  the 
defendant  offered  in  evidence  the  declarations  of  a  former  holder 
of  the  bill,  since  dead,  made  while  it  w^as  in  his  hands,  it  was 
held  that  such  declarations  were  admissible  for  that  purpose,  but 
not  to  affect  the  plaintiff,  unless  such  holder,  from  whom  the 
plaintiff  received  it,  had  knowledge  of  the  fraud  at  the  time  he 
took  it.^ 

In  an  action  by  the  payee  against  the  drawer  of  a  bill  not  ac- 
cepted, the  declarations  of  the  drawee,  made  at  the  time  of  pre- 
senting the  bill,  that  he  had  no  funds  of  the  drawer  in  his  hands, 
are  not  admissible  in  evidence  ;  the  drawee,  in  such  case,  not  being 
the  agent  of  the  drawer."^  But  the  declarations  of  the  payee  of  a 
negotiable  note,  rtiade  while  he  retains  it  in  his  possession,  are 
admissible,  although  he  may  previously  have  written  thq^eon  his 
indorsement  to  a  third  person,  in  whose  name  the  action  is 
brought.^    So,  in  an  action  by  an  indorsee  against  the  maker  of  a 

•Bond     V.      Fitzpatrick,     4     Gray  "  Hollister  v.  Reznor,  9  Ohio  1. 

(Mass.)    89.  °Roe  v.  Jerome,  18  Conn.  138. 

*  Cleveland    v.    Davis.    3    Mo.    331;  'Carle  v.  White,  9  Me.  104. 

Smith    V.    Shank,    19    Barb.    (N.    Y.)  MVhitier  v.  Vose,  IG  Me.  403. 
344. 


494  Evidence.  [Chap.  16 

note  transferred  when  overdue,  the  declarations  of  the  indorsee 
may  be  given  in  evidence  by  the  maker ;  but  if  he  elects  to  call 
him  as  a  witness,  he  thereby  waives  his  right  to  give  his  declara- 
tion in  evidence.^  But  in  the  case  of  commercial  paper,  negotiated 
hefore  due,  the  declarations  of  the  payee  are  inadmissible  to  im- 
peach the  consideration.^^  But  declarations-  by  the  payee  of  a 
note,  executed  by  a  married  woman,  and  transferred  before  ma- 
turity, that  he  had  taken  it  for  her  husband's  debt,  are  admissible 
against  the  indorsee.^^ 

In  an  action  brought  in  the  name  of  the  payee  of  a  promissory 
note  not  negotiable,  for  the  benefit  of  the  assignee,  against  the 
maker,  the  declarations  of  the  payee,  made  after  the  assignment, 
and  notice  thereof  to  the  maker,  are  not  admissible  in  favor  of  the 
defendant.^  ^N^or  in  a  suit  by  the  assignee  of  the  payee  of  a 
promissory  note  can  the  defendant  give  evidence  of  declarations 
made  by  the  payee,  after  his  assignment,  prejudicial  to  the  in- 
terests of  the  plaintiff. ^^ 

It  is  competent  to  show  by  the  admissions  of  a  party  that  a 
debt  owed  by  him  has  not  been  paid.  Thus  the  principal  obligor 
in  a  bond  to  the  United  States  gave  to  the  collector  who  took  the 
bond  a  draft  of  the  amount.  Suit  was  brought  on  the  bond  in  the 
United  States  court,  and  on  the  draft,  in  the  name  of  the  collector, 
in  a  State  court,  and  it  was  agreed  that  judgment  by  default 
should  be  entered  on  the  bond,  and  that  no  other  further  pro- 
ceedings should  be  had  on  the  draft.  Judgment  on  the  bond  re- 
mained unsatisfied,  and  the  collector,  who  had  paid  the  amount 
to  the  United  States,  brought  another  action  on  the  draft.  It  was 
held  that  the  plaintiff  might  repel  any  presumption,  arising  from 

•Merrick  v.  Parkman,  31  Me.  407.  quent  admissions  respecting  the  exe- 

^•Stoner  v.  Ellis,  6  Ind.  152.  cution    of    the    note.      Ensmint^er    v 

"Pilcher^v.  Kerr,  7   La.  Ann.   144.  Marvin,   5   Blackf.    (Ind.)    210r    But 

"Scripture  v.   Newcomb,   16   Conn.  where    A.,    an    indorser    of    a    sealed 

^^f,-  .  note,  indorsed  it  in  blank  to  B.,  who 

Fleming    v.    Newman,    5    Blackf.  delivered    it    to    C.    without    indorse- 

(Ind.)    220.  ment,  and  C.  in  like  manner  sold  it 

In  an  action  of  debt  against  A.  and  to  D.,  and  D.,  having  written  over  A.'s 

B.   on   a   promissory   note,   alleged   in  name     an     indorsement     to     himself, 

the    declaration    to    have    been    made  sued  A.  as  indorser,  it  was  held  that 

by  the   defendants,   A.   made   default,  B.   was   a   competent  witness  for  A.; 

and  B.  pleaded  nil  debet  under  oath.  and    that    consequently    his    declara- 

with  B.  that  the  plaintiff  might  prove  amount  he  paid  for  it,  were  inadmissi- 
the  partnership  of  the  defendants  at  ble.  Lvnn  v.  Jeter,  7  Blackf.  (Ind.) 
the  date  of  the  note,  and  A.'s  subse-       300. 


Sec.  151.]  Admissions.  495' 

such  agreement,  that  the  draft  had  been  paid  or  canceled,  by 
proof  that  the  defendant  had  afterwards  admitted  that  the  draft 
was  jnstly  due  and  unpaid.^'* 

Where  a  note,  payable  on  demand,  was  indorsed  and  trans- 
ferred by  the  payee,  it  was  held  that  the  declarations  of  the  in- 
dorser,  prior  to  the  indorsement  of  the  note,  and  in  reference  to- 
it,  were  admissible  for  the  purpose  of  showing  that  he  was  to  be 
liable  without  demand  or  notice,  and  especially  is  this  the  case 
w^hen  the  admissions  are  connected  with  subsequent  conduct  and 
declarations  having  the  same  tendency.^^  The  consideration  or 
validity  of  a  note-bill,  upon  any  ground,  may  be  attacked  by  ad- 
missions made  by  the  owner  thereof  at  any  time  while  he  was 
owner,  and  after  the  note  was  due.  Thus  the  payee  of  a  note, 
payable  to  himself  or  bearer,  stated,  on  the  day  after  its  date, 
and  while  he  held  it  in  his  possession,  that  he  had  sold  it,  but  that 
he  had  won  the  amount  from  the  maker  at  faro,  and  in  an  action 
by  the  bearer  of  the  note  it  was  held  that  the  declarations  of  tlie 
payee  were  admissible  to  show  that  the  note  was  given  for  a 
gaming  consideration.^'^  But  if  the  note  was  not  due,  and  was 
subsequently  negotiated  before  it  became  due,  such  admissions 
cannot  be  received  to  defeat  the  note,  because  to  admit  them  would 
operate  unjustly  upon  an  innocent  purchaser,  and  would  destroy 
the  value  of  commercial  paper.  Thus  B.,  having  possession  of  a 
promissory  note,  payable  to  H.  or  bearer,  transferred  it,  before 
due,  to  D.,  and,  by  writing  on  the  back  of  the  note,  guaranteed  its 
payment.  B.  being  dead,  in  a  suit  by  D.  against  the  drawer  it 
was  held  that  B.'s  declarations,  made  after  the  transfer,  were  in- 
admissible in  behalf  of  the  defendant  to  invalidate  the  note,  by 
showing  that  it  was  given  for  a  gaming  consideration." 

In  an  action  by  the  indorsee  against  the  maker  of  a  promissory 
note,  which  was  sold  by  the  payee  at  a  rate  exceeding  the  legal 
rate  of  interest,  evidence  of  the  declarations  of  the  payee,  who  w^as 
dead,  that  the  note  was  an  accommodation  note,  lent  to  him  by  the 
maker,  is  not  admissible.^^ 

The  payee  of  a  note,  after  it  was  duly  made  and  delivered,  gave 
it  to  the  maker  to  keep  until  certain  acts,  to  be  done  by  the  maker, 

"M'Cobb  V.  Healey,  17  Me.   158.  "  De  Bruhl   v.  Patterson,   12  Rich 

"Fullerton  v.  Rundlett,  27  Me.  21.        (S.  C.)    363. 

"Sharp  V.  Smith,  7  Rich.  (S.  C.)  3.  ''Kent  v.  Walton,  7  Wend.  (N.  Y.V 

256. 


496  Evidence.  [Chap.  16 

were  performed,  and  the  maker  subsequently  refused  to  redeliver 
it  to  the  payee.  It  was  held,  in  an  action  on  the  note  by  the 
payee;  that  the.  circumstances  under  which  the  note  came  to  the 
possession  of  the  maker  might  be  given  in  evidence  by  him.^^ 

The  indorser  of  a  note,  before  taking  it,  sent  a  messenger  to  the 
maker,  with  instructions  to  inquire  if  it  were  a  business  note. 
The  answer  was  returned  that  it  was.  It  was  held,  in.  a  suit  on 
a  note  to  which  the  defense  sat  up  was  that  it  was  an  accommoda- 
tion note,  that  the  foregoing  facts  having  been  proved,  evidence 
might  properly  be  admitted,  coming  from  any  person  who  made 
the  declaration,  that  the  messenger  on  his  return  stated  this 
answer  to  the  indorsee.^*^ 

The  mere  oral  declaration  of  a  deceased  maker  of  a  note,  made 
during  his  last  illness,  "  that  the  note,  though  nominally  payable 
to  A.,  was  really  for  the  benefit  of  B.,"  is  admissible  to  show  that 
the  note,  in  fact,  was  the  property  of  B.^^ 

Sec.  152.  Admissions  of  Persons  Acting  together  Illegally. 

"Where  hvo  or  more  persons  are  associated  for  the  same  illegal 
purpose,  an  act  or  declaration  of  one  of  the  parties  in  reference 
to  the  common  object,  and  forming  part  of  the  res  gestae,  may  be 
given  in  evidence  against  the  other.^ '  Thus,  on  an  indictment 
against  one  of  several  who  made  a  joint  assault,  the  acts  of  the 
other  may  be  given  in  evidence.^  The  rule  may  be  said  to  be  that, 
when  there  is  a  community  of  interest  and  design,  the  admissions 
or  statements  of  any  of  the  parties  relating  to  the  common  object 
are  admissible  either  in  civil  or  criminal  proceedings.^     Thus, 

"Garlock  v.  Goertner.  id.  198.  La.  Ann.  714;  State  v.  Havelin,  6  id. 

'*Robbins    v.    Richardson,    2    Bosw.  167;     State    v.    Soper,    16    Me.    293; 

(N.  Y. )   248.  Aldrich  v.  Warren,  id.  465;   Common- 

^Morein  v.  Solomons,   7  Rich.    (S.  wealth    v.    Turion,    8    Gray     (Mass.) 

C. )    97.  375;   Commonwealth  v.  Brown,  14  id. 

^  See    §§    141-143,    ante.      American  419;  People  v.  Pitcher.  15  Mich.  .397; 

Fur  Co.  V.  United  States,  2  Pet.    {V.  Mask  v.   State.  32  Miss.  405;    Moers 

S.)    358;    Lincoln  v.   Claflin,   7   Wall.  v.  Martin,  8  Abb.   (X.  Y.)  Pr.  257  :  17 

132;    Stewart   v.    State,   26   Ala.    44;  How.  Pr.  280;  Patton  v.  Ohio,  6  Ohio 

Johnson  v.  State.  29  Ala.  62;   Glory  St.   467;    Fonts  v.   State,   7    id.   471; 

V.    State,    13    Ark.    236;    Clinton    v.  Preston  v.  Bowers,  13  id.  1;  State  v. 

Estes,  20  id.   216;    State  v.   Ross,  29  Thibeau,  30  Vt.   100. 

Mo.  32;   State  v.  Nash,  7  Iowa  347;  ^United     States     v.     Johnston,     1 

Colt  V.  Eves,  12  Conn.  243;   State  v.  Cranch   (U.  S.  C.  C.)    237. 

Gradv,  34  id.  118;  State  v.  Myers,  19  =  Clayton  v.  Anthony,  6  Rand.  (Va.) 

Iowa'  517;    Oldham  v.   BentleV.   6   B.  285;  Snvder  v.  Laframoise.  1  111.  268. 

Mon.    (Ky.)    428;    State  v.   Hogan,  3  Dowie  v.  Driscoll,  203  111.  480.  68  N. 


Sec.  153.]  '  Admissions.  497 

where  several  persons  jointly  attempt  to  perpetrate  a  fraud,  tlie 
declarations  of  one  of  them,  made  during  the  progress  and  in  the 
prosecution  of  the  joint  undertaking,  or  explaining  acts  done  in 
furtherance  of  it,  are  admissible  against  the  others.*  But  before 
such  declarations  of  a  person  not  a  party  to  the  action  can  be 
admitted,  the  common  purpose,  and  his  connection  therewith, 
and  the  common  unlawful  design,  must  be  shown ;  and  evidence 
which  is  merely  admissible  upon  the  question  of  the  common 
illegal  purpose,  but  is  insufficient  to  establish  the  fact,  is  not 
sufficient  to  make  such  declarations  admissible,  and,  for  this  pur- 
pose, the  question  whether  such  common  and  unlawful  design 
has  been  established  is  for  the  court.^  In  the  case  of  conspiracy, 
proof  of  a  division  of  the  profits  of  the  fraudulent  enterprise  is 
sufficient  evidence  of  a  combination  to  let  in  the  evidence  of  one 
conspirator  against  the  rest.^  But  admissions  by  one  made  after 
the  undertaking  is  completed  are  not  admissible  against  the 
others,^  nor  after  the  death  of  the  person  making  the  admission.^ 

Sec.  153.  Admissions  by  Co-plaintiffs  or  Co-defendants. 

The  better  rule  seems  to  be  that  the  admission  of  one  plaintiff 
in  an  action  is  not  admissible  against  his  co-plaintiffs  unless  their 
interest  in  the  subject-matter  of  the  action  is  joint}  Nor  can 
the  admission  of  a  merely  nominal  plaintiff,  made  after  the  action 
was  brought,  be  given  in  evidence  to  defeat  the  action.^  And  the 
same  rule  prevails  as  to  co-defendants,^  and  the  admission  of  one 

E.   R.   50.     Conspiracy  for  malicious  ^  Baswell  v.  Blackman,  12  Ga.  591; 

prosecution,  Lasher  v.  Littell,  202  111.  Raton  v.  Nichols,   22  Ark.  244 :   Bar- 

551,  67  N.  E.  R.  372.  num  v.  Hackett,   35  Vt.   77;   Juby  v. 

*  Jenne  v.  Joslyn,  41  Vt.  478;   Lee  Brigham,    9    Humph.     (Tenn.)     750; 

V.  Lamprey,  43  N.  H.  13;  Peterson  v.  Armstrong    v.    Farrar,    8    Mo.    627; 

Speer,   29    Penn.    St.    479;    Patton    v.  Hurst  v.  "^Robinson.   18   Mo.   82.      The 

Freeman,  1  N.  J.  L.   113;  Anthorp  v.  admission  of  a  legatee  under  a  will, 

Comstock,  2  Paige  Ch.    (N.   Y. )    482.  as  to  the  mental  capacity  of  the  tes- 

'  Jones   V.   Hurlburt.   39    Barb.    (N.  tator,    is   not   admissible   against   the 

Y.)    403;    Burke   v.    Miller,    7    Cush.  others.      Thompson   v.    Thompson,    13 

(Mass.)    547.  Ohio  St.  356;  Irwin  v.  West,  31  Penn. 

'  Kimmel     v.     Geeting,     2     Grant's  St.  157. 

Cas.   (Penn.)    125;  Kelsey  v.  Murphy,  '' Sargeant  v.  Sargeant,  18  Vt.  371; 
26  Penn.  St.  78.                                           "    Chrisholm    v.    Newton,    1    Ala.    371; 

'Clinton    v.    Estes,    20    Ark.    21G;  Sykes  v.  Lewis,  17  Ala.  241 ;  Mayer  v. 

Lynes   v.    State,   36    Miss.    617;    Ben-  Inman,  2  Swan    (Tenn.),  80;  Dazy  v. 

ford    V.    Sanner,    56    Penn.    St.    336;  Mills,  10  111.  67;   Brown  v.  Foster,  4 

Hunter  v.  Com.,  7  Gratt.    (Va.)    641.  Ala.  282. 

sGaunce    v.    Backhouse.    37    Penn.  ^  Lenhart  v.  Allen,  32  Penn.  St.  312; 

St.  350.  Burnham   v.    Sweatt,    16   N.   H.   418; 

32 


4.98  Evidence.  [Chap.  IG 

is  evidence  against  the  other  when  the;^'  are  sued  npon  a  joint 
contract.*  But  where  the  contract  is  several,  and  one  of  two  per- 
sons liable  thereon  is  sued  alone,  admissions  made  by  the  other 
are  not  admissible.^  In  actions  of  tort,  as  in  trover,  the  admis- 
sion of  one  defendant  is  admissible  against  him,  but  not  against 
the  other,^  although  the  other  defendant  should  generally  ask  the 
court  to  direct  the  jury  not  to  consider  the  evidence  as  affecting 
him.,  or  it  will  not  furnish  a  ground  for  a  new  trial.^ 

Sec.  154.  Admission  of  One  of  Two  or  More  Persons  United  in 
Interest. 

An  admission  of  one  of  two  or  more  persons  who  were  at  the 
time  of  the  admission  jointly  interested  in  the  subject-matter  to 
which  the  admission  relates,  is  admis'sible  against  the  others.^ 
Thus,  after  prim.a  facie  evidence  of  a  partnership  has  been  given, 
the  admission!  of  one  of  the*  partners  is  admissible  against  th© 
others,^  although  the  partner  making  the  admission  is  not  a  party 
to  the  suit.^^  But  the  admission  must  be  made  while  the  partner- 
ship still  exists ;  if  made  after  its  dissolution,  it  is  not  admissible 
against  the  others,^^  unless,  perhaps,  to  prove  payment  of  a  debt 
due  to  the  iirm.^"  The  fact  that  it  is  against  interest  must  be  es- 
tablished, and  the  admission  of  one  of  two  or  more  o^vners  of  land 

Walling  V.  Roosevelt,  16  N.  J.  L.  41;  that  his  admissions  very  properly  are 

Quinlan  v.  Davis,   6  Wheat.    (Penn.)  the  case  of  joint  ownership  or  interest, 

169.  where   no   partnership   exists,   neither 

*  Martin  v.  Eoot,  17  Mass.  222.  owner  is  an  agent  for  the  other,  and 

*  Baker  v.  Briggs,  8  Pick.    (Mass.)  there  seems  to  be  no  reason,  therefore, 
122.  why  the  admission  of  one  should  bind 

'  Edgerton      v.       Wolf,       6       Gray  the  other,  and  the  rule  to  that  effect 

(Mass.),    453;    Hodges   v.    Hodges,   2  in    New    York   seems    to   best    accord 

Cush.    (Mass.)    455.  with  principle.  Lewis  v.  Woodworth,  2 

'Hubbell      V.      Bissell,      2      Allen  N.  Y.   512:    Whitcomb  v.  Whitney,  2 

(Mass.)    196;    Williams   v.    Taunton,  Doug.  652 ;  Vicary's  Case,  Gil.  Ev.  51. 

125  Mass.  34.  *JSricholls  v.  DaVding,  1  Starkie,  81 

«Dowie  v.  Driscoll,  203  111.480,  68  But  judge  must  first  determine  wheth- 

N.  E.  R.  56;    Bakeney  V.  Ferguson,    14  er  there  is  prima  facie  evidence  of  a 

641;    Barnwell   v.   Blackman,    12    Ga.  partnership.     Hilton  v.  McDowell,  87 

691 ;  Oviatt  v.  Sage,  7  Conn.  95 ;  Rea-  N.  C.  364. 

gan  v.  Green,   13  Penn.  St.  508.     We  ^»  Wood  v.  Braddick,  1  Starkie,  81. 

have  always  regarded  this  rule  as  un-  But  this  is  denied  in  Rooth  v.  Quin,  7 

sound  and  not  sustainable  upon  prin-  Price,   198. 

ciple.     In  the  case  of  partners  there  "  Watson  v.  Woodman,  L.  R.  20  Eq. 

is  not  only  a  joint  interest,  but  each  721. 

partner  in  the  business  of  the  part-  ^^  Pritchard  v.  Draper,   1  R.  &  My. 

nership  is  an  agent  for  the  others,  so  191. 
held  to  be  binding  upon  all.     But  in 


Sec.  155.]  Admissions.  499 

or  personal  property  is  not  admissible  against  the  other,  because 
their  interests  are  not  joint,  but  several.®  Thus,  the  admission 
of  one  of  several  owners  of  a  vessel  is  not  admissible  against  the 
others,^  nor  are  the  admissions  of  one  tenant  in  common  admis- 
sible against  the  other,^  nor  is  the  admission  of  a  life  tenant  ad- 
missible against  a  person  claiming  by  title  paramount;^  but  the 
admission  of  one  joint  tenant  is  admissible  against  the  other.^** 
In  order  to  make  such  an  admission  admissible  against  the  other 
joint  owners,  according  to  the  English  cases,  the  parties  must  have 
a  joint  interest  in  the  decision. ^^ 

A  declaration  of  one  of  several  legatees  under  a  will,  not  made 
in  the  presence  of  the  other  legatees,  is  not  admissible,^^  as  it 
affects  adversely  other  legatees.^^  But  the  admissions  as  to  the 
capacity  of  the  testator  by  the  proponent  of  a  will  who  is  the  re- 
cipient of  substantially  his  entire  estate  and  is  charged  with  un- 
due influence,  are  competent.^'*  The  declarations  of  an  insured 
party  as  to  tlie  shooting  which  caused  his  death  are  not  admissible 
against  the  beneficiary  in  the  policy  unless  made  as  part  of  the 
res  gestae}^ 

Sec.  155.  Admissions  by  Husband  or  Wife. 

A  husband  can  be  charged  by  the  contract  or  admission  of  his 
wife  only  in  consequence  of  some  authority  actually  given,  or 
necessarily  implied  from  the  circumstances  under  which  she 
acts.  But  the  circumstances  under  which  the  plaintiff's  property 
went  into  possession  of  a  defendant  administratrix  may  be  shown 
in  detinue,  by  proving  a  request  from  the  defendant  to  the  plain- 
tiff to  that  effect  in  the  lifetime  of  her  husband.^    But  as  the  wife 

°Tlie  New  Orleans,  106  U.  S.  13.  ''Appeal    of    Carpenter,    74    Conn. 

^McMillan  v.  Cox,  36  Me.  95;  Page  431,  51  A.  126, 

V.  Swanton.  39  id.  400;  The  New  Or-  '' Lundy  v.  Lundy,   118   Iowa,   445, 

leans,  160  U.  S.  13.     Unless  they  nav-  92  N.  W".  39.     Only  one  person  sub- 

igate  the  vessel  together;   Blackstock  stantially  interested. 

V.  Leidy,  16  Penn.  St.  335.  '^  Sutcliffe  v.  Iowa  Travelling  Men's 

'Dan   V.    Brown,    4    Cow.    (N.   Y.)  Association,  119  Iowa  220,  93  N.  W. 

483.  90. 

^Hitt    V.     Roderick,     4    W.     &     S.  ^  Rochelle     v.     Harrison,     8     Port. 

(Penn.)    221.  (Ala.)    351.      But,   as   stated,   except 

'"Moore   v.    Pearson,     6    W.    &    S.  where   an   agency   is   established,   the 

(Penn.)    51.  admissions    of   the   wife   cannot   bind 

"  Vicary's   Case,    Gilb.   Ev.   61 ;    Le  the  husband  or  be  used  against  him. 

Blanc,  J.,  in  11  East,  581.  Queener   v.   Morrow,   1   Cald.    (Tenn.) 

'-  Roberts  v.  Bidwell,  (Mich.,  1904),  123:  Logan  v.  Link,  4  E.  D.  S.  (N.  Y. 

98   N.   W.   1000.  C.   P.)    63;    Lay  Grae  v.   Peterson,   3 


500  Evidence.  [Chap.  16 

may  act  as  tlie  agent  of  the  husband,  declarations  or  admissions 
made  by  her  ^vhile  so  acting,  either  under  express  or  implied 
authority,  are  admissible  against  the  husband,^  or  against  her.' 
Admissions  made  by  the  wife  are  admissible  against  her  in  an 
action  brought  by  her  in  her  own  name.'*  So  they  are  admissible 
where  she  is  joined  witli  her  husband  as  a  party  to  the  snit.^  So 
her  admissions  are  competent  evidence  when  her  trustees  sue  or 
are  sued  on  her  account.^  But  not  if  the  husband  is  the  hostile 
party.'  So  in  a  contest  by  creditors  of  a  husband  for  certain 
property  which  his  wife  claimed  as  her  separate  estate  evidence 
of  declarations  by  tlie  husband  claiming  ownership  in  the  prop- 
erty is  not  admissible  against  the  wife.*  After  a  husband  has 
duly  transferred  certain  personal  proix-rty  to  his  wife  his  claim 
of  exemption  from  attachment  made  to  the  sheriff  is  not  admissi- 
ble in  evidence  asrainst  her  in  an  action  against  the  sheriff  for 
conversion  of  the  property.^  Her  admissions  are  not  admissible 
for  the  husband  except  where  they  form  a  part  of  the  res  gestae}'^ 
But  in  many  of  the  States  the  legal  status  of  the  wife  is  extended 
by  statute,  and  she  is  invested  with  the  right  to  sue  and  be  sued, 
and  may  testify  for  or  against  her  husband,  and  under  such 
statutes  her  admissions  would  be  evidence  where  they  would  not 
be  at  the  common  law. 

The  adniissions  of  the   wife,  as  a  rule,  will  hind  the  husband 
only  where  she  had  authority  to  make  them.^^     This  authority 

Sandf.  (X.  Y.)   338 ;  Walls  v.  Capped,  » Trapnell    v.    Conklvn,    37    W.    Va. 

15  Mo.  448.     In  Kimball  v.  Currier,  5  242,  16  S.  E.  570,  38  Am.  St.  Rep.  30. 

Gray    (Mass.)    458,  it  was  held  that  » Aldous  v.  Olverson,  17  S.  D.   190, 

the  declarations  of  a  wife  as  to  the  95  N.  W.  917. 

state   of   her   husband's   mind   at    the  '"Walton  v.  Green,  1  Cr.  P.  621. 

time  he  executed  a  certain  paper  can-  "Emerson  v.  Blonden.  1   Esp.   142; 

not  be  shown   in  an  action   in   which  Anderson     v.      Sanderson,     2     Stark, 

the  validity  of  such  paper  is  involved.  204:    Carey   v.   Adkins,   4   Camp.   92; 

'Riley  v.  Suydam,  4  Barb.   (X.  Y.)  Meredith  v.  Footner,  11  M.  &  W.  202. 

222.       *             "  Where   he   sues   for  her   wages,  the 

*  Leyner   v.   Leyner,    123   Iowa    185,  mere  fact  that  she  earned  them  does 

98  X.'W.  628.  not  authorize  her  to  bind  him  by  her 

*Morrell    v.    Crowley,    17    Abb.    Pr.  admissions  of  pa^anent,   Hall  v.   Hill, 

(X.  Y.)   76.                    *  2  Str.   1094;  Taylor  on  Ev.  511,  512; 

®Pook  v.  Hopkins,  2  Bailey   (S.  C.)  nor  can  her  unauthorized  declarations 

408.  affect   him,  even   where  he   sues  with 

°  Hanson    v.    Parker,    1    Wils.    257 ;  her   in   her    right ;    for    in   these   and 

May  v.  Taylor,  6  M.  &  G.  266.  similar    cases   the    right   is    his    own. 

'  Taylor   on   Ex.,   §    543.      But   this  though   acquired   through   her   instru- 

rule  is  varied  essentially  by  statutes  mentality.  Alban  v.  Pritchett,  6  T.  R. 

relating  to  married  women  in  some  of  C80;  Kelly  v.  Small.  2  Esp.  716;  Denn 

the   states.  v.  ^^^lite,  7   T.  R.   112,  as  to  her  ad- 


Sec.  155.] 


Admissions. 


501 


does  not  result,  by  mere  operation  of  law,  from  the  relation  of 
husband  and  wife,  hut  is  a  question  of  fact,  to  he  found  hy  the 
jury,  as  in  other  cases  of  agency;  for  though  this  relation  is  pecu- 
liar in  its  circumstances,  from  its  close  intimacy  and  its  very 
nature,  yet  there  is  nothing  peculiar  in  the  principles  of  law 
which  apply  to  it.  As  the  wife  is  seldom  expressly  constituted  the 
agent  of  the  husband,  the  cases  on  this  subject  are  almost  univer- 
sally those  of  implied  authority,  turning  upon  the  degree  in  which 
the  husband  permitted  the  wife  to  participate  either  in  the  trans- 
action of  his  affairs  in  general,  or  in  the  particular  matter  in 

question. 

Where  husband  and  wife  are  joint  parties  in  a  suit  the  declara- 
tions of  each  are  admissible  in  evidence  against  the  declarant,  but 
not  against  the  other. ^ 

In  an  action  for  damages  for  an  assault  and  battery  by  the 
wife  of  the  defendant  upon  the  wife  of  the  plaintiff,  the  ad- 
missions of  the  wife  of  the  defendant  are  not  admissible  in  evi- 
dence to  charge  her  husband.^^  And  when  husband  and  wife  sue 
jointly  for  services  rendered  by  the  wife  during  coverture,  her 


mission   of   a   trespass.      Neither   are 
his  admissions  as  to  facts  respecting 
her  property,  which  happened  before 
the     marriage,     receivable    after     his 
death,  to  affect  the  rights  of  the  sur- 
viving wife.     Smith  v.  Scudder,  11  S. 
&     R.      (Penn.)      325.       In     regard 
to     the     inference     of     her     agency 
from      circumstances,      the      question 
was    formerly   left   to   the   jury   with 
great    latitude,    both    as    to    the    fact 
of    agency   and    the   time    of   the   ad- 
missions.   Thus,  it  has  been  held  com- 
petent for  them  to  infer  authority  in 
her  to  accept  a  notice  and  direction  in 
regard  to  a  particular  transaction  in 
her  husband's  trade,  from  the  circum- 
sstance  of  her  being  seen  twice  in  his 
counting-room,   appearing   to   conduct 
his    business   relating   to    that   trans- 
action, and  once  giving  orders  to  the 
.foreman,  Plimmer  v.  Sells,  3  N.  &  M. 
422.      And   in   an   action   against   the 
husband   for   goods    furnished    to   the 
wife  while  in   the  country,  where  he 
occasionally  visited  her,  her  letter  to 
the  plaintiff,  admitting  the  debt  and 
apologizing      for      the      non-payment, 
though  written  several  years  after  the 
transaction,  was  held  sufficient  to  take 


the  case  out  of  the  Statute  of  Lim- 
itations. Gregory  v.  Parker,  1  Camp. 
394;  Palethorp  v.  Furnish,  2  Esp.  511, 
n.;  Clifford  v.  Burton,  1  Bing.  199;  8 
Moore,  1(5,  S.  C;  Petty  v.  Anderson,  3 
Bing.  170;  Cotes  v.  Davis,  1  Camp. 
485.  But  this  would  not  now  be  held; 
greater  strictness  has  prevailed.  In 
an  English  case,  Meredith  v.  Footner, 
11  M.  &  VV.  202,  where  a  wife,  by  her 
husband's  authority,  carried  on  the 
business  of  a  shop,  and  attended  to  all 
the  receipts  and  payments,  the  court 
held  that  admissions  made  by  her  to 
the  landlord  of  the  shop  respecting  the 
amount  of  rent  were  not  admissible  to 
bind  the  husband.  Had  the  admis- 
sions related  to  the  receipt  of  shop 
goods,  they  would  have  been  evidence ; 
but  the  fact  that  she  was  conducting 
a  business  for  her  husband  did  not 
constitute  her  his  agent  to  make  ad- 
missions of  an  antecedent  contract 
for  the  hire  of  the  shop,  or  to  make  a 
new  contract  for  the  future  occupa- 
tion of  it. 

"Chaslovka  v.  Mechalek,  124  Iowa 
69,   99  N.  W.  154. 

"  Hussey  v.  Elroyd,  2  Ala.  339. 


502  Evidence.  [Ohap.  16 

admissions  of  payment  cannot  be  received  in  evidence  against 
them." 

Declarations  of  a  husband  that  he  sold  a  note  belonging  to  the 
separate  estate  of  his  wife  are  not  admissible  in  evidence  after 
his  deatli,  against  the  wife,  in  an  action  brought  by  her  against 
the  holder  of  the  note,  for  its  conversion.^"  But  the  admissions  of 
a  married  woman  are  competent  evidence  in  an  action  by  her 
trustee,  suing  for  her  use,  in  favor  of  the  defendant.^* 

In  an  action  against  a  husband  and  wife  for  trespass  committed 
by  the  wife  on  the  plaintiff,  the  admissions  or  declarations  of 
neither  of  them  can  be  introduced  by  the  plaintiff  to  prove  the 
trespass."  But  in  an  action  for  a  homestead,  the  declarations  of 
tthe  alleged  wife  are  competent  to  prove  that  the  plaintiffs  are  not 
married/* 

Upon  the  contest  of  a  will,  evidence  of  what  the  widow  of  tlie 
deceased  had  said  in  relation  to  his  insanity  is  inadmissible.^^ 

In  a  suit  brought  by  husband  and  wife  jointly,  jure  uxoris, 
declarations  made  by  her,  not  in  his  presence,  are  not  evidence.^" 
But  the  declarations  of  the  plaintiff's  husband  that  money  to  be 
paid  by  the  defendant  for  premises  in  the  husband's  possession 
belonged  to  the  plaintiff,  and  that  he  wished  the  contract  to  inure 
to  her  benefit,  are  admissible  in  evidence  for  the  plaintiff,  in  an 
action  brought  to  enforce  the  contract  after  her  husband's  death.^^ 

If,  pending  a  suit  against  husband  and  wife,  the  husband  dies, 
and  the  suit  proceeds  against  the  wife  alone,  her  admissions  of  the 
debt,  made  during  coverture,  are  evidence  against  her.  So  in  a 
suit  against  husband  and  wife  for  a  debt  contracted  by  the  wife 
while  sole,  the  admissions  of  the  latter,  made  during  coverture, 
are  not  admissible  evidence.^^ 

A  husband's  admissions  are  incompetent  to  prove  him  an  agent 
for  his  wife,  in  matters  concerning  her  separate  property.^^ 

^Vllere  the  surviving  wife  sues  to  annul  a  sale  by  her  and  her 
husband  to  defendant,  as  a  party  interposed  in  a  disguised  dona- 
tion to  her  husband,  his  and  her  declarations,  though  out  of  the 

"Jordan  V.  Hubbard,  26  Ala.  433.  "Cook  v.  Osborn,  2  Root    (Conn.) 

"Murphree    v.    Singleton,    27    Ala.  31. 

412.  =»  Turner  v.  Coe,  5  Conn.  93. 

"  MeLemore  v.  Nuckolls,  1  Ala.  Sel.  "  Grain  v.  Wright.  46  111.  107. 

Cas.  591.  "  Lasselle     v.     Brown,     8     Blackf. 

"Funkhouser    v.    Pogue,     13    Ark.  (Ind.)   221. 

295:  Burnett  V.  Burkhead,  21  Ark.  77,  ''MVhitescarver  v.  Bonney,  9  Iowa, 

"Poole  V.  Gerrard,  9  Cal.  593.  480. 


Sec.  155.] 


Admissions.  ^^^ 


defendant's  presence,  are  admissible  against  him  as  part  o:^  the 
res  gestae}'  But  in  a  real  action  by  husband  and  wife,  to  recover 
possession  of  land  claimed  in  her  right,  evidence  of  the  wife  s 
•declarations,  made  during  coverture,  has  been  held  not  to  be  ad- 
missible for  the  defendant.^^  But  where  the  subscribing  witnesses 
have  been  called  and  failed  to  show  that  a  deed  was  executed  by  a 
wife  whereby  she  relinquishes  her  right  of  dower,  the  admissions 
of  the  wife,  made  during  her  widowhood,  of  her  having  executed 
the  deed,  are  admissible  as  the  next  best  evidence.^^  So,  on  the 
issue  whether  certain  money  belonged  to  plaintiff  or  to  her  late 
husband,  testimony  that  she  had  no  property  at  the  time  ol  his 
death,  or  for  a  year  or  two  previous,  may  be  rebutted  by  proof  ot 
his  declarations  to  the  contrary  within  that  period.^^ 

Evidence  of  declarations  made  by  a  husband,  during  coverture, 
is  not  admissible  against  his  creditors  to  establish  a  secret  parol 
agreement  between  him  and  the  wife,  in  reference  to  property 
standing  in  the  husband's  name  during  his  lifetime.'^ 

Admissions  and  declarations  of  the  wife,  made  both  before  and 
after  marriage,  of  the  making  and  execution  of  a  parol  ante- 
nuptial agreement,  by  which  the  husband  was  to  have  her  choses 
in  action,  and  pay  her  the  interest  thereon  for  pin  money,  are  ad- 
missible in  favor  of  the  husband's  representatives,  against  those 
of  the  wife  who  seek  to  get  possession  of  the  bonds  and  notes  of  the 
wife,  which  have  been  delivered  to  the  husband  pursuant  to  such 

agr  cement.  ^^ 

Upon  a  joint  indictment  of  husband  and  wife,  the  declarations 
of  the  wife,  though  criminating  both,  are  admissible  in  evidence 
against  her,  but  not  against  him. 

Sec.  156.  Admissions  by  Attorneys. — For  recent  cases  on  formal 
admissions  by  attorneys,  see  §  167,  post. 

The  admissions  of  attorneys  of  record  hind  their  clients  in  all 
Tnatters  relating  to  the  progress  and  trial  of  the  cause.  In  some 
cases  they  are  conclusive,  and  may  even  be  given  in  evidence 
upon'  a  new  trial,  although,  previously  to  such  trial,  the  party 

"  Thibodeaux  v.  Herpin,  6  La.  Ann.  -  Brooks  v.  Dent   1  McL  Ch.  523. 

„_,  ''Crane  v.  Gough,  4  Md.  31b. 

"White  V.  Holman,  12  Me.  157.  "Com.  v.  Briggs,  5  Pick.    (Mass.) 

2"  Frost  V.  Deering,  21  Me.  156.  429. 
'-'  Linscott  V.  Trask,  38  Me.  188. 


504  Evidence.  [Chap.  16 

gives  notice  that  he  intends  to  withdraw  them,  or  though  the 
pleadings  are  altered,  provided  the  alterations  do  not  relate  to 
the  admissions.^  But  to  this  end  they  must  be  distinct  and  formal, 
or  such  as  are  termed  solemnj  admissions,  made  for  the  express 
purpose  of  alleviating  the  stringency  of  some  rule  of  practice, 
or  of  dispensing  with  the  formal  proof  of  some  fact  at  the  trial. ^ 

Another  class  of  admissions  comprehends  those  which  attorneys 
make,  not  with  the  express  intent  of  dispensing  with  proof  of 
certain  facts,  but  incidentally,  while  they  are  referring  to  other 
matters  connected  with  the  cause.  These,  which  are  generally 
the  result  of  carelessness,  though  not  regarded  as  conclusive  ad- 
missions, are  still  considered,  not  unfrequcntly,  as  raising  an 
inference  respecting  the  existence  of  facts  which  the  adversary 
would  otherwise  have  been  called  upon  to  prove ;  and  consequently 
it  is  very  important  that  attorneys  should  exercise  great  caution, 
in  the  language  they  employ  while  corresponding  with  their  op- 
ponents. Thus,  where,  in  an  action  against  the  acceptor  of  a  bill,, 
his  attorney  had  served  notice  on  the  plaintiff  to  produce  all 
papers  relating  to  a  bill,  the  description  of  which  corresponded, 
with  that  set  forth  in  the  declaration, — "  which  said  bill,"  the 
notice  went  on  to  state,  "  was  accepted  hy  the  said  defendant," — 
the  court  held  that  such  notice  was  prima  facie  evidence  of  the 
defendant's  acceptance  f  and  in  an  action  against  the  o\^^lers  of  a 
ship,  their  joint  ownership  was  inferred  from  an  undertaking  to 
appear  for  them,  signed  by  their  attorney,  in  which  they  were  de- 
scribed as  owners  of  the  sloop  in  question.'*  Again,  where  the  de- 
fendant's attorney,  in  an  action  of  debt  on  a  bond,  had  admitted 
the  signature  of  the  attesting  witness,  this  was  held,  by  implica- 
tion, to  amount  to  an  admission  of  the  due  execution  of  the  in- 
strument.^ 

Admissions,  however,  contained  in  the  mere  conversation  of  an 
attorney,  cannot  be  received  against  the  client,  although  they  re- 
late to  the  facts  in  controversy.  The  reason  of  this  distinction  is 
found  in  the  nature  and  extent  of  the  authority  given,  the  attor- 
ney being  constituted  for  the  management  of  the  cause  in  court, 

^  Elton  V.  Larkins,  5   C.  &  P.   385;       Young  v.   Wright,   1   Camp.    141,   per 
Doe  V.  Bird,  7  C.  «&  P.  6 ;   Langley  v.      Lord  Ellenborough. 
E.  of  Oxford,  1  M.  &  W.  508.  =  Holt  v.  Squire,  Ry.  &  M.  282. 

'See  cases  cited  in  last  note.     Also  *  Marshall  v.  Cliff,  4  Camp.  133. 

*Milward  v.  Temple,   1   Camp.   375. 


Sec.  156.] 


Admissions.  ^^^ 


and  for  nothing  more.«     So,  if  a  letter,  sent  by  an  attorney  to 
the  opposite  party,  is  expressed  to  be  written  ''  mtlwut  preju- 
dice;'  it  cannot  be  received  as  an   admission;  neither  can  the 
reply  be  admitted,  though  not  guarded  in  a  similar  manner.^     If 
the  admission  was  made  before  suit,  it  will  be  equally  binding, 
provided  it  is  shown  that  the  attorney  was  already  retained  to 
appear  in  the  cause.^    But  in  the  absence  of  any  evidence  of  re- 
tainer at  that  time  in  the  cause,  there  must  be  some  other  proof 
of  authority  to  make  the  admission.^     When  the  attorney  is  al- 
ready constituted  in  the  cause,  admissions  made  by  his  managing 
clerk,  or  his  agent,  are  received  as  his  own.^^    Thus,  where  abuse 
of  process  is  charged,  an  admission  of  a  son  of  an  attorney  m 
charge  of  his  father's  office  during  his  absence,  is  competent  as  to 
the  conduct  of  a  claim  sent  to  his  father,  as  against  the  client, 
who  sent  it.''    The  admissions  of  an  attorney  are  not  binding  upon 
his  client  when  made  in  reference  to  a  transaction  in  which  he 
had  no  apparent  authority  to  act  for  him.     Thus  the  declarations 
of  an  attorney  who  sold  a  note  belonging  to  his  client  without 
authority,  relative  to  his  title  to  the  note,  not  made  at  the  time  of 
the  sale,"^  are  not  admissible  in  an  action  between  the  true  owner 
of  the  note  and  the  purchaser.'^    Xor  has  an  attorney  with  whom 
a  demand  is  left  for  collection,  such  an  interest  in  a  suit  brought 
by  him  thereon  as  to  make  his  admissions  competent  evidence  for 
the  defendant  in  auclHa  querela  brought  to  set  aside  Uie  judg- 
ment;'' nor  can  admissions  made  by  an  attorney  in  one  suU,  be 
used  as  evidence  in  another  suit  between  the  same  parties ;"'  nor 
admissions  made  by  him  after  his  connection  with  the  case  has 
ceased.'^ 

« Siunders    v     McCarthy,    8    Allen  &  P.  40G ;   Griffiths  v.  Williams    1  T. 

Saunders    v     luc^ari  Y'  R.  710;  Truslove  v.  Burton,  9  Moore, 

Sr\39ri4lrpfrkins'l  Xwk-  64;  Taylor  v.  Forster,  2  C.  &  P.  195. 

shaT^  Stark    239;   Doe  v.  Richards,  "Lord,   Owen  &  Co.   v.   Wood,     20 

2  C   &"Kir    2161  Wilson  v.  Turner,  1  Iowa  303,  94  N.  W.  842,  saying  that 

Taunt    398  "clients  cannot  m  reason  expect  that 

^  PaddJc^'  V.  Forrester,  3   Scott,  N.  every  act  in  connection  with  the  busx- 

R    734       See  Jardine   v.   Sheridan,   2  ness  affairs  intrusted  by  them  to  an 

C    &  K    -^4  attorney  will  be  done  by  him  person- 

■»  Marshall    v.    Cliff,   4    Camp.    133;  ally.'^^ 

Gainsford  v.  Grammar,  2  Camp    9  T^iomas  v^  Kmsey    §  Ga^  421-^ 

"Wagstaff   V.    Wilson,   4   B.   &   Ad.  '' Und<?nvood  v.  Hait,  23  Vt    120 

339-   Burahart  v.  Angerstein,  6  C.  &  "  Wilkins  v    Stidger,  22   Cal    23U 

P    695;   Pope  v.  Andrews,  9  C.  &  P.  Maffi^   v.^  Witherspoon,    10    Ired.    (N. 

^^- Taylor   v.   Williams,   2   B.   &   Ad.         "- Janeway  v.  Skerritt,  30  N.  J.  L. 
845,  856;   Standage  v.  Creighton,  5  C.      97. 


506 


Evidence. 


[Chap.  16 


Sec.  157.  Declarations  and  Admissions  of  Agent. 

It  is  a  well  settled  rule  of  evidence  that  the  declarations  or  ad- 
missions of  an<  agent  will  hind  the  principal  in  respect  to  matters 
about  lehich  he  icas  authorized  to  act  for  him,  if  made  at  the  tim-e 
of  the  transaction,  so  as  to  constitute  a  part  of  the  res  gestae,^  or 
in  reference  to  a  transaction  not  yet  completed  f  but  in  order  to 
make  such  admissions  binding,  the  authority  of  the  person  niak- 
ins:  them  must  be  established  bv  other  evidence  than  that  he  acted 


'Fairlee  v.  Hastings,  10  Ves.  123; 
Tuttle  V.  Turner,  28  Tex.  759;  Win- 
ter V.  Bent,  31  Ala.  33;  Keane  v. 
Branden,  12  La.  An.  20;  Page  v. 
Parker,  40  N.  H.  47;  Barnard  v. 
Henry,  25  Vt.  289;  Dykes  v.  Cock- 
erel!, 6  La.  An.  707,  Woods  v.  Banks, 
14  N.  H.  101;'  Byers  v.  Lawler.  14 
Ark.  87 ;  Lawry  v.  Harris,  12  Minn. 
255;  Griffin  v.  Montgomery  R.  R. 
Co..  26  Ga.  11:  Covington,  etc.,  R.  R. 
Co.  V.  Ingles,  15  B.  Mon.  (Ky.)  237; 
Hynds  v.  Days,  25  Ind.  31;  Tillot- 
son  V.  McCrillis,  12  Vt.  477 ;  Raiford 
V.  French,  11  Rich  (S.  C),  367;  Con- 
verse V.  Blumrich,  14  Mich.  109; 
Dome  V.  Southworth  Manuf.  Co.,  11 
Cush.  (Mass.)  205;  Moore  v.  Bettis, 
11  Humph.  (Tenn.)  267;  Rowell  v. 
Klein,  44  Ind.  290;  Rathel  v.  Brady, 
44  Ind.  412;  Anderson  v.  Rome,  etc., 
R.  R.  Co.,  54  N.  Y.  334;  Peck  v. 
Ritchey,  66  Mo.  114;  Verry  v.  Bur- 
lington, etc.,  R.  R.  Co..  47  Iowa,  549; 
Hydorn  v.  Cushman,  16  Hun  (X.  Y. ), 
107;  White  v.  Miller,  71  N.  Y.  118; 
Furst  V.  Second  Ave.  R.  R.  Co.,  72  N. 
Y.  542;  Schaefer  v.  Gilden,  3  Col. 
15;  Treadway  v.  Sioux  City,  etc.,  R. 
E.  Co.,  40  Iowa,  526;  Tuggle  v.  St. 
Louis,  etc.,  R.  R.  Co.,  62  Mo.  425; 
Darling  v.  Oswego  Falls  Manuf.  Co., 
30  Hun  (N.  Y.),  276;  Phelps  v. 
Georgia  Creek,  etc.,  R.  R.  Co.,  60  Md. 
586;  Pavey  v.  Wintrode,  87  Ind. 
379 ;  Louisville,  etc.,  R.  R.  Co.  v.  Hen- 
ley, 88  Ind.  535. 

The  declarations  of  an  agent,  with- 
in the  scope  of  his  authority,  and  in 
reference  to  the  business  in  which  he 
is  employed,  may  be  proved  as  'the 
■declarations  of  the  principal.  Amer- 
ican Fur  Co.  V.  United  States.  2  Pet. 
(U.  S.)  358;  City  Bank  v.  Bateman, 
7  H.  &  J.  (Md.)  10-t;  Sharp  v.  New 
York,  40  Barb.   (N.  Y.)   256;   Kasson 


V.  Mills,  8  How.  (X.  Y.)  Pr.  377; 
Hunter  v.  Hudson  River  Co.,  20  Barb. 
(N.  Y.)  493;  Stewartson  v.  Watts.  8 
Watts  ( Penn. ) ,  392  ;  Chorpenning  v. 
Royce,  58  Penn.  St.  476 ;  Fring  v. 
Breymeyer.  2  Phil.  (Penn.)  92.  To 
the  contrary,  Betts  v.  Bank,  etc.,  3 
Stew.  (Ala.)  18.  Where  the  decision 
of  a  question  depends  at  all  upon  the 
fact  whether  the  plaintiff  in  a  suit 
had  assented  to  an  act  which  was  a 
deviation  from  the  actor's  strict  line 
of  duty,  and  of  a  kind  for  which  the 
plaintiff  could  hold  him  responsible, 
it  is  proper  to  ask  what  the  plain- 
tiff's attorney  said  after  the  act  was 
done ;  the  case  bein"  one  where  an 
adoption  by  the  plaintiff  of  the  act 
illegally  done  concluded  his  remedy. 
Rogers  v.  Marshall,  1  Wall.  (U.  S.) 
644.  The  declaration  of  an  agent  of 
the  government,  when  not  forming  a 
part  of  the  res  gestae,  does  not  bind 
the  government,  and  cannot  be  re- 
ceive as  evidence.  United  States  v. 
Martin.  2  Paine  (U.  S.  C.  C),  68.  A 
principal  is  chargeable  with  the  false 
representations  made  by  his  agent  m 
a  sale  where  the  agent  is  acting 
within  the  line  of  business  committed 
to  him.  Morton  v.  Scull,  23  Ark. 
289;  Ferguson  v.  Hamilton,  35  Barb. 
(X.  Y. )  427;  Union  Bank  v.  Camp- 
bell, 4  Humph.  (Tenn.)  394.  But  an 
agent  acting  under  a  written  au- 
thority from  his  principal  cannot  en- 
large his  powers  by  his  own  declara- 
tions, so  as  to  bind  his  principal. 
Mapp  V.  Phillips,  32  Ga.  72.  S.  P. 
Xational,  etc.,  Co.  v.  Bruner,  19  N. 
J.  Eq.  331;  Xew  York,  etc.,  Co.  v. 
Beebe,  8  N.  Y.  364. 

^  Morse  v.  Conn.,  etc.,  R.  R.  Co., 
6  Gray  (Mass.).  456;  Halsey  v.  Le- 
high Valley  R.  R.  Co..  45  N.  J.  L.  26. 


Sec.  157.] 


Admissions. 


507 


as  a  general  agent  of  the  party,  and  his  mere  declarations,  aiid 
they  must  relate  to  the  subject-matter  of  his  agency,  and  he  mthirv 
the  scope  of  his  authority.'  Neither  his  declarations  nor  his  acta 
are  sufficient  to  establish  his  authority,'  unless  his  acts  and  decla- 


•  Craighead  v.  Wells,  21  Mo.   404; 
Moffit     V.     Cresler,     8     Iowa,      122; 
Latham    v.     Pledger,     11     'lex.    4.37; 
Hatch     V.     Squires,     11     Mich.     185; 
Fitch  V.   Chapman,   10  Conn.   8;   Sen- 
serbox    v.    McGrade,    6    Minn.     484; 
Mapp    V.    Phillips,    32    Ga.    72.       In 
Brigham  v.   Peters,    1   Gray    (Mass.), 
139,  the  declarations  of  an  agent,  al- 
though accompanied  by  acts  as  such, 
were  held  not  to  be  admissible  to  es- 
tablish the  fact  of  agency.     Declara- 
tions made  by  the  general  agent  of  a 
telegraph  company  of  its  liability  for 
an  accident,  two  months,  niter  its  oc- 
currence, were  held  to  be  incompetent. 
Eandall  v.  Northwestern  Tel.   Co.,   54 
Wis.    140;   41   Am.   Rep.   17.     In   this 
case  the  general  superintendent  of  the 
company  having  the  general  manage- 
ment of  his  business,  sent  a  telegram 
two    months    after    an    accident,    in 
which    the   liability   of   the    company 
for  an  injury  inflicted  on  the  defend- 
ant was  admitted.       The  plaintiff  in- 
troduced   this    telegram    in    evidence. 
The  Supreme  Court  held  that  it  was 
not  admissible,  because  the  authority 
of  the  superintendent  to  admit  away 
the  rights  of  the  company,  could  not 
be  inferred  from  his  position.     "  The 
inadmissibility  of  this  evidence,"  said 
Taylor,     J.,     "  is     fully     established 
.     .     .     upon  well-established   princi- 
ples of  law.     Milwaukee,  etc..    R.   R. 
Co.  v.  Tinney,  10  Wis.  388;     Betts  v. 
Farmers',  etc.,  Co.,  21  Wis.  80;   Live- 
sley  V.  Lasalette,  28  Wis.  38;   Hazle- 
ton    V.    Union    Bank,    32    Wis.    34; 
Richards     v.     Noyes,     44     Wis.     609; 
Ronnsavell    v.    Pease,    45    Wis.    506; 
Packet  Co.  v.   Clough,   20   Wall.    (U. 
S. )    540.     These  cases  show  that  the 
rank  or  station  of  the  person  making 
the    admission    does    not    aflfect    the 
question     of    its     admissibility.        In 
Hazleton  v.  Union  Bank,  ante,. the  ad- 
mission of  the  president  of  the  bank 
•was    held    inadmissible.        In    Packet 
Co.  v.  Clough,  ante,  the  admission  of 
the  captain  of  the  boat   could  not  be 
(admitted.       The    authority    to    make 


the  admission  for  the  principal  is  not 
to  be  inferred  from  the  position  or 
rank  of  the  party  making  the  same. 
If  such  authority  is  alleged  to  exist, 
it  must  be  shomi  by  competent  proof.'* 
In  Webb  v.  Smith,  6  Cal.  365,  dec- 
larations made  by  a  general  agent  of 
a  corporation,  concerning  a  debt  con- 
tracted by  him  for  the  corporation 
within  the  scope  of  his  authorilj, 
were  held  admissible  as  prima  facie 
evidence. 

*Huebner  v.  Erie  R.  Co.,  69  N.  J. 
327.   55   A.   273;      Fogg   v.   Child,    13 
Barb.    (N.  Y.)    246;  W'ood  v.    Bank.-* 
14  N.  H.  101 ;  Runk  v.  Ten  Eyck,  24 
N.   J.   L.   756;      Gooch  v.   Bryant,   13 
Me.  386;   Winter  v.  Burt,  31  Ala.  33; 
Demeritt  v.   Meserve,   39   N.   H.   521; 
Neeley  v.  Navlee,  23  Cal.  152;  Brehm 
v.  Great  Western  R.  R.  Co.,  34  Barb. 
(N.  Y. )    256;      Youcum  v.   Barnes,  8 
B.  Mon.    (Ky.)    496;   Austin  v.  Chit- 
tenden, 33  Vt.  553;   Lamb  v.  Barnard, 
16    Me.    356;      Cooley    v.    Norton,    4 
Cush.    (Mass.)    93;  Thomas  v.   Stein- 
heimer,    29    Md.    268;      Beardsley    v. 
Steinmesh,   .38  Mo.   168;      Budlong  v. 
Van  Nostrand,  24  Barb.    (N.  Y.)    25; 
Benedict  v.  Denton,   Walker    (Mich.), 
Ch.  336;    Waterman    v.    Peet,    11    111. 
648;   Rogers  v.  McCune,   19  Mo.  557. 
He  is  bound  by  the  agent's  false  rep- 
resentations  in    reference    to   matters 
within  his  authority,  although  he  did 
not  know  that  the  agent  had  made  or 
did  not  authorize  him  to  make  them. 
N.  Y.,  etc.,  R.  R.  Co.  v.  Schuyler,  34 
N.  Y.  30;   Hunter  v.  Hudson  River  R. 
R.  Co.,  20   Barb.    (N.   Y.)    493.     And 
he  is  bound  by  a  warranty  m.ade  by 
an    agent    in    the    sale    of    a    chattel. 
Elzell  V.   Franklin,  2  Sneed    (Tenn.), 
236;   Williamson  v.  Cannaday,  3  Ired. 
(N.    C.)    L.   349;   Lane   v.   Dudley,   2 
Murph.     (N.    C.)     119;      Marckle    v. 
Haskins,  27  111.  282. 

'Teamster's  receipts  showing  re- 
ceipt of  flour  in  good  condition  not 
admissible  without  proof  of  authority 
of  teamster  to  bind  his  employer  as 
to  the  quality  of  the  flour.       Sibley 


508 


Evidence. 


[Chap,  le 


rations  upon  that  and  former  occasions  are  such  independent 
proof  as  tend  to  establish  a  general  authority  f  that  is,  unless  it 
is  shown  that  similar  transactions  entered  into  by  the  person 
claiming  to  be  an  agent  had  been  ratified  and  acted  ujwn  by  the 
party  sought  to  be  affected  by  such  admission's  or  declarations/ 
Thus,  in  the  case  last  cited,  proof  that  a  "  drummer  "  for  a  whole^ 
sale  house  had  taken  other  orders  for  the  same  house,  which  had 


Warehouse  &  Storage  Co.  v.  Durand  & 
Kasper  Co..  200  111.  354,  65  N.  E.  R. 
G76;  Seatt  v.  Crane,  1  Conn.  255; 
Folsom  V.  Batchelder,  22  N.  H.  47; 
Richmond  Iron  Woi'ks  v.  Hayden, 
132  Mass.  190;  France  v.  Edwards, 
77  N.  C.  271;  Gifford  v.  Landrine, 
37  X.  J.  Eq.  127. 

The  agency  of  a  party  must  first 
be  proved  by  other  evidence  than  his 
acts,  before  it  can  be  assumed  that 
his  acts  are  binding  on  the  principal. 
Scarborough  v.  Reynolds,  12  Ala. 
252;  Van  Eppes  v.  Smith,  21  Ala. 
317;  Scott  V.  Crane,  1  Conn.  255; 
Cruikshank  v.  Comvns,  24  111.  602; 
Thurman  v.  Wells,  IS  Bart.  (N.  Y.) 
500;  Dixon  v.  Haslett,  3  Brev.  (S. 
C. )  475;  Bank  of  Hamburg  v.  John- 
son, 3  Rich.  (S.  C.)  42.  Thus,  with- 
out proof  of  agency,  a  warranty  of  a 
grass-cutting  machine,  signed  "  A.  B., 
agent,"  was  offered  and  received  in 
evidence  in  an  action  upon  warranty, 
and  it  was  held  that  this  was  erro- 
neous.    Gray  v.  Gillilan,   15   111.  453. 

Where  a  deed  executed  by  one  as 
agent  is  exhibited,  but  his  authority 
is  not  proved,  the  title  must  be  con- 
sidered as  residing  in  his  principal, 
who  should  have  been  made  a  party 
to  the  suit;  and  if  the  bill  is  dis- 
missed, it  should  be  without  preju- 
dice. Pope  v.  Melone,  2  A.  K.  Marsh. 
(Ky.)  239.  Relinquishment  of  title 
to  land^  made  to  the  State  by  a  per- 
son asserting  himself  to  be  an  agent, 
is  not  operative  upon  the  holder  of 
the  title  unless  the  agency  is  proved. 
Morgan  v.  Marshall,  7  J.  J.  Marsh. 
(Ky. )  316.  In  an  action  against  a 
corporation  for  injury  done  by  their 
agent  it  is  not  necessary  to  prove  that 
the  agent  had  authority  under  the 
corporate  seal,  nor  under  an  order  en- 
tered upon  the  books  of  the  corpora- 
tion. Hooe  V.  Ma;\'or,  etc.,  of  Alex- 
andria,  1   Cranch    (U.   S.   C.   C),   90. 


The  certificate  of  a  notary  public,  vm- 
der  his  notarial  seal,  of  the  acknowl- 
edgment by  the  principal  of  a  power 
of  attorney,  is  sufficient,  in  Alabama^ 
to  authorize  its  admission  in  evi- 
dence. St.  John  v.  Redmond,  9  Port. 
(Ala.)  428.  The  authority  of  an 
agent  to  assume  the  payment  of  the 
debt  of  a  third  person,  for  his  princi- 
pal, should  be  clearly  proved,  or  no 
recovery  can  be  had  upon  such  prom- 
ise against  the  principal.  Reading 
R.  R.  V.  Johnson,  7  W.  &  S.  (Penn.) 
317.  It  will  not  be  presumed  that 
the  agents  of  an  insurance  company 
have  authority  to  make  parol  con- 
tracts to  insure;  such  authority  must 
be  shown  affirmatively.  The  declara- 
tion of  such  agents,  in  the  course  of 
business,  that  it  was  not  customary 
to  give  policies  upon  such  insurances, 
though  they  receive4  the  premium,  is 
not  sufficient  to  prove  the  authority 
of  the  agents  to  insure  by  paroL 
Aetna  Ins.  Co.  v.  North  W'estern  Iron 
Co.,  21  Wis.  458.  To  make  a  letter 
to  an  agent  evidence  in  a  case,  the 
agency  must  first  be  established. 
Brown  v.  Bank  of  Missouri,  2  Mo. 
191;  Brown  v.  Harrison,  17  Ala".  774. 
In  an  action  against  the  principal,  on 
paper  purporting  to  be  signed  by  his 
agent,  the  agency  and  avithority  to 
draw  checks  must  be  proved  to  entitle 
the  plaintiff  to  recover.  Flax  and 
Hemp  Co.  v.  Ballentine,  16  N.  J.  L. 
454.  W^liere  one  is  agent  of  another 
to  offer  a  reward  for  the  apprehen- 
sion of  a  criminal,  in  order  to  bind 
the  principal,  it  is  necessary  to  provej 
the  simple  fact  of  the  agency,  and  not 
the  wav  in  Avhich  it  was  created. 
Currie  v.  Swindall,  11  Ired.  (N.  C.) 
L.  3G1. 

"Cobb  V.  Lunt,  4  Me.  503;  Wailea 
V.  Neal,  65  Ala.  59. 

'Nation  v.  Thomas,  25  Tex.  221; 
Murray  v.  Chase,  134  Mass.  92. 


Sec.  157.] 


Admissions. 


509 


been  regularly  filled  by  it,  was  held  sufficient  to  authorize  evidence 
of  his  representations  as  an  agent  in  its  behalf.  It  is  the  province 
of  the  court  to  determine  whether  there  is  sufficient  prima  facie 
evidence  of  agency  to  render  his  acts  and  declarations  admis- 
sible f  but  where  there  is  any  legal  evidence  tending  to  establish 

the  ground,  merely,  that  the  plaintiff 
was  justified  in  regarding  the  defend- 
ant as  the  principal  in  the  business, 
unless  he  also  had  sufficient  grounds 
for  believing  that  such  third  person 
was  authorized  to  make  the  purchase 
upon  the  credit  of  the  defendant. 
And  such  authority  cannot  be  estab- 
lished merely  by  showing  that  such 
third  person  had,  in  a  few  instances, 
made  purchases  in  the  name  of  the 
defendant,  such  purchases  having 
been  in  fact  unauthorized  by  him  be- 
fore they  were  made,  and  not  under- 
standingly  sanctioned  and  adopted 
aftferwards.  Brown  v.  Billings,  22 
Vt.  9. 

The  rule  that  an  instrument  which 
is  apparently  the  personal  obligation 
of  the  signer,  may  by  parol  be  shown 
to  be  the  obligation  of  another,  for 
whom  the  signer  was  acting  as  agent, 
applies  exclusively  to  cases  in  which 
it  appears  in  the  body  of  the  instru- 
ment, or  from  the  signature  of  the 
persons  by  whom  it  is  executed,  that 
he  was  acting  for  another,  and  in- 
tended to  bind  such  other,  and  not 
himself  personally.  In  such  cases, 
where  the  party  to  whom  the  obliga- 
tion is  given  understands  the  char- 
acter in  which  the  party  giving  it  is 
acting,  parol  evidence  may,  it  seems, 
be  given  to  show  that  the  maker  or 
obligor  was  acting  in  the  matter  as 
agent  merely. 

But  where  there  is  nothing  of  that 
kind,  either  in  the  body  of  the  in- 
strument or  attached  to  the  signa- 
ture, to  indicate  that  it  was  intended 
to  be  anything  other  than  a  personal 
obligation,  such  evidence  is  inadmis- 
sible. Auburn  City  Bank  v.  Leonard, 
40  Barb.   (N.  Y.)    119. 

In  an  action  brought  to  recover 
property  alleged  to  have  been 
wrongfully  delivered  by  an  agent,  who 
was  also  a  witness,  to  the  defendant, 
who  had  notice  that  such  agent  was 
exceeding  her  authority,  the  fact  that 
such  witness  and  agent  made  a  writ- 


^Muroe  v.  Stutts,  9  Ired.  (N.  C.) 
L.  49.  Mere  proof  of  a  person's 
recognition  of  another's  authority  to 
make  purchases  as  his  agent  on  one 
occasion  is  not  sufficient  to  charge 
the  former  for  a  subsequent  purchase 
of  the  same  kind  (in  this  case,  of 
cattle  and  sheep  on  credit)  made  by 
the  latter,  claiming  to  act  as  his 
agent, — it  must  be  shown  that  the 
vendor,  at  the  time  of  such  purchase, 
was  cognizant  of  those  acts  of  recog- 
nition. Maxey  v.  Heckethorn,  44  111. 
437. 

Where  the  question  is  whether  an 
agent  not  having,  by  the  papers 
which  created  him  such  agent  and 
defined  his  powers,  any  authority  to 
alter  a  policy  which  had  been  issued 
by  his  principal,  was  permitted  to 
alter  policies  in  respect  to  dates  of 
sailing,  from  time  to  time,  so  that 
that  became  the  customary  usage  and 
course  of  business,  the  evidence  must 
show,  in  order  to  bind  the  principal, 
at  least  several  cases  in  which  the 
agent,  without  asking  the  sanction  of 
his  acts  by  the  principal,  had  made 
alterations  of  a  like  nature  on  which 
the  principal  had  acted,  and  in  which 
he  had  acquiesced,  when  such  altera- 
tions came  to  his  knowledge;  or  it 
must  tend  to  prove  that,  although 
communicated  by  the  agent,  they  were 
acquiesced  in  as  acts  which  he  was 
competent  to  perform,  and  as  binding 
on  his  principal;  or  that  he  was  held 
out  to  the  public  as  authorized  to  do 
such  acts.  Bunten  v.  Orient,  etc., 
Ins.  Co.,  4  Bosw.   (N.  Y.)   254. 

The  action  upon  book  account  to 
recover  for  property  claimed  to  have 
been  sold  by  the  plaintiff  to  the  de- 
fendant, but  which  property  was  in 
fact  sold  and  delivered  to  a  third  per- 
son, who  was  doing  business  in  the 
name  of  the  defendant,  and  who,  as 
between  himself  and  the  defendant, 
had  no  right  to  pledge  the  credit  of 
the  defendant  for  the  purchase  of  the 
property,    cannot    be    sustained    upon 


510  Evidence.  [Chap.  16 

authority,  the  whole  question  may  properly  be  submitted  to  the 
jury  with  instructions  to  find  whether  the  agent  was  acting  within 
the  scope  of  his  authority  in  making  the  admissions,  and  if  not, 
to  lay  the  evidence  out  of  the  case.^  Proof  of  authority,  inde- 
pendent of  the  acts  or  declarations  of  the  agent,  must  be  given.^'' 
The  mere  rank  or  position  of  the  person,  as  that  he  is  general 
superintendent,  general  manager,  general  agent,  etc.,  of  the  prin- 
cipal, is  not  of  itself  sufficient  evidence  of  his  authority  to  make 
the  admission  unless  it  urns  made  in  reference  to  a  transaction 
in  which  he  participated,  and  under  such  circumstances  as  make 
it  a  part  of  the  res  gestae  ;^^  consequently,  except  where  made  by 
tlie  agent  as  and  for  the  principal,  and  with  competent  authority, 
in  order  to  be  admissible,  they  must  constitute  a  part  of  the  res 
gestae.  The  true  doctrine  in  reference  to  the  admissibility  of  this 
class  of  evidence  was  stated  by  Dallas,  C.  J.,  in  an  early  English 
case.^^  He  said,  "It  is  not  ^true  that  where  an  agency  is  estab- 
lished, the  declarations  of  the  agent,  are  admitted,  merely  be- 
cause they  are  his  declarations ;  they  are  only  evidence  when  they 
form  a  part  of  the  contract  entered  into  by  the  agent  on  behalf  of 
the  p'incipal,  and  in  that  single  case  they  become  admissible. 
The  declarations  of  an  agent  at  a  different  time  have  been  de- 
cided not  to  be  evidence;  indeed,  the  cases  on  the  subject  draw 
this  distinction  between  the  declarations  of  an  agent  accompany- 
ing the  making  of,  and  therefore  forming  a  part  of,  the  contract, 

ten  contract  with  the  defendants,  134.  Where  a  defendant  directed  his 
which  imported  that  she  sold  to  them  daughter  to  write  in  reply  to  a  letter 
such  property  as  her  own,  does  not  asking  payment  of  a  book  account, 
make  evidence  that  she,  at  the  time,  Avithout  giving  her  particular  in- 
told  them  the  property  belonged  to  structions,  her  letter  is  admissible 
the  plaintiff,  inadmissible.  Meserole  against  him.  Skidmore  v.  Joiinson, 
V.  Archer,  3  Bosw.  (N.  Y. )   376.  68  N.  J.  674,  57   A.  450;   Wendell  v! 

In    an    action    by    a    third    party  Abbott,  45  N.  H.  349. 

against  a   principal,  upon   a   transac-  ^"  Wailes  v.  Neal,  65  Ala.  59. 

tion  with  the  agent  of  the  latter,  let-  "  Randall  v.  Northwestern  Tel.  Co., 

ters  between  the  principal  and  agent  54   Wis.    140:      Scott  v.   Middletown,' 

are  admissible  in  favor  of  the  plain-  etc.,  R.   R.  Co.,  86  N.  Y.   200.       The 

tiff  to  prove  the  nature  of  the  agency.  declarations  of  an  agent  are  received 

Thurston  v.  Mauro,  1  Greene   (Iowa),  as  evidence  against  his  principal,  not 

231.                                     ■  as   admissions,   but   because   they  are 

If    the    defendant    has    authorized  o  part  of  the  res  gestae.       Haven  v. 

another   to   subscribe   his   name   to   a  Brown,  7  Me.  425 ;   Virginia,  etc.,  R. 

note,  the  fact  need  not  appear  on  the  R.  Co.  v.  Sayers,  26  Gratt.   (Va.)   328. 

note,    but    may   be    proved   by    parol.  '^  Betham     v.     Benson,     Gow,     48 ; 

Morse  v.  Greene,   12  N.  H.  32.  Covle  v.  Baltimore,  etc.,  R.  R.  Co,  11 

*Matzenbaugh    v.    People.    194  111.  W.'  Va.  94. 
108,  62  N.   E.   546,  88   Am.   St.  Rep. 


Sec.  157.]  Admissions.  511 

and  those  made  either  at  a  subsequent  or  antecedent  period.. 
These  declarations,  when  admissible,  constitute  original  evidence, 
and  are  not  mere  hearsay.  Tliey  hind  the  'principal  only  when 
made  during  the  continuance  of  the  agency  in  regard  to  a  matter 
then  depending  et  dum  ferret  opus.  The  ground  upon  which 
they  are  admitted  is  the  legal  identity  of  the  principal  and  the 
agent,  and  the  fact  that  his  declarations  are  a  part  of  the  res 
gestae}^ 

Thus  statements  made  by  a  master  of  a  vessel  to  one  injured,, 
immediately  after  the  accident,  are  admissible  as  part  of  the  res- 
gestae,^*  and  the  acts,  conduct  and  language  on  the  day  of  arrest 
of  a  prosecuting  agent  of  a  corporation  are  competent  in  an  action 
for  malicious  prosecution  against  the  corporation.^^  Statements 
made  by  local  officers  of  a  Mutual  Benefit  Society  to  the  Central 
Office  in  passing  uix)n  a  beneficiary's  claim  for  death  are  admis- 
sible in  evidence  against  the  society  on  account  of  the  agency  of 
the  local  officers.^*^  Declarations  by  an  agent  in  possession  of 
goods  to  an  official  while  he  was  making  an  official  examination 
as  to  whether  they  should  be  seized  for  forfeiture  are  admissible 
against  the  owner  as  part  of  the  res  gestae .^"^  On  the  issue 
whether  an  owner  of  an  invention  furnished  proper  plates  for 
its  manufacture,  statements  by  an  agent  of  the  manufacturers  in 
charge  of  the  business  as  to  the  operation  of  the  machine  held 
admissible. ^^  Statements  made  by  the  general  superintendent  of 
a  railway  on  arrival  at  the  scene  of  a  wreck  some  three  hours 
after  it  had  occurred,  while  examining  the  wheels,  one  of  which 
was  broken,  to  the  effect  that  "if  the  company  used  any  more 
Tacoma  wheels  he  would  not  work  any  more  for  them"  and  "I 
cannot  be  putting  new  wheels  under  the  cars  all  the  time"  are 
admissible  as  part  of  the  res  gestae.  They  are  made  by  one  hav- 
ing control  and  management  of  the  road  under  such  circumstances 

"  Henry,  J.,  in  McDermott  v.  Han-  Transportation  Co.,  30  Wash.  346,  70 

nibal.  etc.,  R.  R.  Co.,  73  Mo.  516,  39  Pac.  960. 

Am.  Rep.  526 ;   Griffin  v.  Montgomery  '*  Southern   Car   &   Foundry   Co.   v. 

R.    R.    Co.,    26    Ga.    Ill;      Moore    v.  Adams,    131    Ala.    147,    32    Southern, 

Meacham,   10  N.  Y.  207;   Robinson  v.  503,  506. 

Fitchburgh,   etc.,   R.   R.  Co.,   7    Gray  '"Patterson  v.  United  Artisans,  43 

(Mass.),    92:   Galceran    v.    Noble,    66  Ore.  333,  72  Pac.  1095. 

Ga     307 ;      Franklin    Bank    v.    Steam  "  Friedenstein     v.     United     States, 

Navigation  Co..  11  G  &  J.    (Md.)   28.  125  U.  S.  224,  230.  8  S.  Ct.  838. 

"  Lambert  v.  LaConnor  Trading  and  '*  Steeher    Lithographic    Co.    v.    In 

man,  175  N.  Y.  124,  67  N.  E.  R.  213. 


612 


Evidence. 


[Chap.  10 


as  necessarily  to  exclude  the  idea  of  design  or.  deliberation.^^  A 
book  kejit  by  one  who  is  agent  for  both  plaintiff  and  defendant 
is  admissible  against  either.^*^ 

Therefore  it  will  be  seen  that  the  declarations  of  an  agent, 
made  after  the  transaction  to  luliicli  they  relate  is  ended,'^  or  not 
accompanied  hy  an  authorized  act,^^  or  which  are  beyond  the 
scope  of  his  authority/^  are  not  admissible  against  the  principal. 
The  rule  is  that,  whenever  it  is  proved  that  a  person  is  the  agent 
of  another  as  to  a  special  matter,  or  generally,  whatever  such 
person  says,  does  or  writes  in  reference  to  such  matter,  during  the 
pendency  of  the  transaction  to  which  his  agency  relates,  and  in 
pursuance  thereof,  is  evidence  against  the  principal,  but  it  is  not 
admissible  merely  as  the  agent's  account  of  what  has  passed.^* 


"  Roberts  v.  Port  Blakelev  Mill  Co., 
30  Wash.  25,  70  Pac.  111. 

-"  Copeland  v.  Boston  Dairy  Co., 
184  Mass.  207,  68  N.  E.  R.  218. 

^'i  Jordan  v.  Stewart,  2.3  Penn.  St. 
244;  Hadspeth  v.  Allen,  26  Ind.  165; 
Levy  V.  Mitchell,  6  Ark.  138;  Brig- 
ham  V.  Carr,  21  Tex.  142;  Caldwell  v. 
Oarner.  31  Mo.  131;  Waterman  v. 
Peet,  11  111.  648;  Raiford  v.  French, 
11  Rich  (S.  C).  367:  Craig  v.  Gil- 
brath,  47  Me.  416;  Austin  v.  Chitten- 
den, 33  Vt.  553;  Keeler  v.  Salisbury, 
33  N.  Y.  648. 

"Turnpike  Co.  v.  Thorpe,  13  Conn. 
173. 

"Wright  V.  Georgia  R.  R.,  etc., 
Co.,  34  Ga.  330. 

"  Langhorn  v.  Allnutt,  4  Taunt. 
519. 

Mr.  Roscqe,  in  his  Digest  of  the 
Law  of  Evi'dence,  p.  72,  illustrates 
this  rule  thus: 

The  declaration  of  a  servant  em- 
ployed to  sell  a  horse  is  evidence  to 
charge  the  master  with  a  warranty,  if 
made  at  the  time  of  sale;  but  state- 
ments made  at  any  other  time  are  not 
admissible  against  him.  Helyear  v, 
Hawke,  5  Esp.  72.  So  where  the 
servant  of  a  horsedealer,  who  was  em- 
ployed to  take  a  horse  to  the  stables 
of  the  purchaser,  had  signed  a  re- 
ceipt containing  a  warranty,  this  re- 
ceipt without  proof  of  the  servant's 
authority  to  give  a  warranty  was  re- 
jected in  an  action  against  his  mas- 
ter. Woodin  v.  Burford.  2  Cr.  &  M. 
391.     An  admission  by  a   servant,  in 


a  transaction  not  relating  to  the  busi- 
ness in  which  he  is  employed,  is  not 
evidence  against  his  master.  Thus 
where  a  pawnbroker's  shopman  was 
heard  to  state  that  his  master  had 
lent  £200  at  5  per  cent,  on  the  se- 
curity of  certain  plate,  this  was  held 
inadmissible  as  against  the  master. 
Garth  v.  Howard,  8  Bing.  451.  But 
if  the  statement  had  been  made  by 
him  in  the  course  of  a  transaction  in 
the  ordinary  course  of  a  pawn- 
broker's business,  it  would  have  been 
different.  Schumack  v.  Lock,  10  B. 
Moo.  39.  The  letters  of  an  agent  to 
his  principal  containing  a  narrative 
of  past  transactions  in  which  he  had 
been  employer,  are  not  admissible  in 
evidence  against  the  principal.  Kahl 
v.  Jansen,  4  Taunt.  565;  Fairlie  v. 
Hastings,  10  Ves.  128;  Betham  v. 
Benson,  Gow.  45.  An  admission  by  a 
person  who  has  generally  managed 
A.'s  landed  property,  and  received  his 
rents,  is  not  evidence  against  A.  as  to 
his  employer's  title,  there  being  no 
other  proof  of  his  agency  ad  hoc.  Ley 
V.  Peter,  3  H.  &  N.  101.  So  in  an 
action  against  a  surety,  the  admis- 
sions or  declarations  of  the  principal, 
to  whom  goods  have  been  sent  by  the 
plaintiflF  at  the  defendant's  request, 
are  not  evidence  against  the  defend- 
ant either  as  to  the  receipt  of  the 
goods,  or  as  to  other  facts  respecting 
them.  Evans  v.  Beattie,  5  Esp.  26; 
Bacon  v.  Chesney,  1  Stark.  192.  But 
a  letter  from  an  agent  abroad,  stat- 
ing the  receipt  of  money,  coupled  with. 


Sec.  157.] 


Admissions. 


H3 


All  the  rules  applicable  in  the  case  of  agents  are  applicable  in 
the  case  of  master  and  servant,  and  the  admissions  of  the  servant 
may  be  said  not  to  be  admissible  against  the  master,  except  when 
thev  are  made  in  reference  to  matters  in  which  the  acts  of  the 
servant  will  bind  the  master,  and  when  they  form  a  part  of  the 
res  gestae.^     But  this  class'  of  admissions  or  declarations  is  not 


the  answer  of  the  principal  directing 
"the  disposition  of  the  money,  wifl  be 
-evidence  of  the  receipt  by  the  princi- 
pal. Coates  V.  Bainbridge,  5  Bing. 
58.  The  admissions  of  an  under- 
sheriff  are  evidence  against  a  sheriff, 
for  he  is  the  general  agent  of  the 
sheriff;  Drake  v.  Sykes,  7  T.  R.  117; 
but  not  unless  they  accompany  an 
.act  done,  or  they  tend  to  charge  him- 
self, he  being  the  real  party  in  the 
■cause.  Snowball  v.  Goodricke,  4  B.  & 
Ad.  541.  The  admissions  of  a  bailiff 
are  evidence  against  the  sheriff,  like 
the  statements  of  any  other  agent, 
only  when  they  form  part  of  the 
transaction.  North  v.  Miles,  1  Camp. 
389.  The  admissions  of  a  surveyor  of 
a  corporation  respecting  a  house  be- 
longing to  the  corporation  are  evi- 
dence against  the  latter  in  an  action 
for  an  injury  to  the  plaintiff's  house 
by  works  done  on  the  defendant's 
premises.  Peyton  v.  S.  Thomas'  Hos- 
pital, 3  M.  &  Ky.  625,  n.;  and  see 
London,  ]\Iayor  of,  v.  Long,  1  Camp. 
25;  Reg.  v.  Adderbury,  East,  5  Q.  & 
B.  187.  Evidence  may  be  given 
-against  companies  of  admissions 
made  by  their  directors  or  agents  re- 
lating to  matters  within  the  scope  of 
their  authority.  Meux's  Case,  2  D., 
M.  &  G.  522.  So  a  letter  written  by 
the  secretary  of  a  company  by  order 
of  the  acting  directors,  stating  the 
number  of  shares  held  by  M.,  was  ad- 
mitted on  behalf  of  his  executors,  in 
proceedings  against  them.  National 
Exchange  Co.  of  Glasgow  v.  Drew,  2 
Macq.  103.  The  secretary  of  a  pro- 
jected company  has  not,  by  virtue 
only  of  his  office,  any  power  to  bind 
the  members  of  the  provisional  com- 
mittee bv  admissions.  Burnside  v. 
Dayrell,  '3  Exch.  225.  In  Bruff  v. 
Ot.  N.  Ry.  Co.,  1  F.  &  F.  345.  an  ad- 
mission of  a  secretary  of  a  company 
as  to  the  receipt  of  a  letter  was  held 
not  admissible.       See,  also,  Ridlev  v. 

33 


Plymouth  Banking  Co.,  2  Exch.  711. 
The  evidence  of  admission  by  servants 
of  a  railway  company  as  to  the  cause 
of  the  loss,  or  delay  in  delivering 
goods,  has  been  held  not  admissible. 
Gt.  Western  Ry.  Co.  v.  Willis,  18  C. 
B.,  N.  S.  748;  Brewing  Co.  v.  Fur- 
ness  Ry.  Co.,  L.  R.  Q.  B.  468. 

"Black  V.  Camden,  etc.,  R.  R.  Co., 
45  Barb.  (N.  Y.)  40:  Weeks  v.  Bar- 
ron, 38  Vt.  420;  Maurv  v.  Tal- 
madge,  2  McLean    ( U.  S.  C.  C),  157. 

Thus,  where  a  witness  testified  that 
a  few  days  prior  to  the  demand  of  a 
chair  by  the  plaintiff,  he,  at  the 
plaintiff's  request,  went  to  the  de- 
fendant's hotel  for  the  chair,  and  that 
while  there,  but  in  the  absence  of  the 
defendant,  he  asked  the  defendant's 
clerk,  who  had  the  general  supervi- 
sion and  charge  of  the  hotel,  if  the 
chair  was  there,  at  the  defendant's 
hotel,  and  the  clerk  replied  that  it 
was,  it  was  held  that  this  was  a  dec- 
laration in  respect  to  matter  in  re- 
gard to  which  the  clerk  had  full 
means  of  knowledge,  and  tended  to 
show  that  the  chair  was  at  the  de- 
fendant's hotel  when  the  witness 
called  for  it.  Weeks  v.  Barron,  38 
Vt.  420.  See,  ante,  §  154.  So,  in  an 
action  against  a  railway  company  on- 
account  of  injuries  received  by  thfc 
plaintiff's  wagon  and  horses  from  a 
collision  with  the  defendant's  cars,  it 
was  held  that  statements  made  at  the 
time  by  the  servant  who  was  driving 
the  plaintiff's  wagon,  as  to  the  cause 
of  the  accident,  were  admissible  as  a 
part  of  the  res  gestae ;  Toledo,  etc., 
R.  R.  Co.  V.  Goddard,  25  Ind.  185; 
and  the  same  rule  was  also  applied 
in  an  action  against  a  railroad  cor- 
poration by  a  passenger  for  the  loss 
of  his  trunk,  and  the  admissions  of 
the  conductor,  baggage-master  or  sta- 
tion-master, as  to  the  manner  of  the 
loss,  made  in  answer  to  inquiries  on 
behalf    of    the    passenger    the    next 


514  Evidence.  [Chap.  16 

admissible  unless  they  are  a  part  of  the  res  gestae,  and  if  made 
after  the  act  to  which  they  relate  has  transpired,  so  that  they  can- 
not be  said  to  be  connected  with  and  a  part  of  the  act  itself,  as  an 
half  hoiir,'^  or  any  other  period  of  time  so  remote  from  the  prin- 
cipal act  that  they  cannot  be  said  to  be  a  part,  of  it,  they  are  not 
admissible,  except  where  they  are  made  while  still  discharging  a 
duty  which  has  been  imposed  upon  him  by  the  master.  Admis- 
sions made  by  a  director  of  a  corporation  in  charge  of  his  work 
as  to  the  work  are  not  admissible  when  made  en  route  from  one 
place  to  another  while  not  directly  engaged  in  the  business  of  the 
corporation.^^  Evidence  of  a  statement  made  by  a  foreman  after 
an  accident  to  an  employe  as  to  his  direction  to  the  employe  is 
not  admissible  in  evidence  against  the  principal,  as  it  is  a  decla- 
ration not  made  in  the  course  of  the  agency  of  the  foreman.^  In 
an  action  against  a  railroad  for  abusive  language  used  by  its 
brakeman  to  a  passenger,  subsequent  statements  by  the  brakeman 
admitting  his  acts  are  inadmissible  to  bind  the  company.^  A 
statement  by  a  superintendent  in  a  mine  as  to  the  cause  of  aa 
accident  is  inadmissible,  not  being  part  of  the  res  gestae  or  bind- 
ing on  the  company.^^  Statements  of  a  treasurer  of  a  corpora- 
tion as  to  loans  of  the  corporation  are  not  evidence  against  it 
when  made  when  he  was  not  acting  for  it.^^  Where  suit  is 
brought  on  a  claim  that  the  defendant  has  driven  the  plaintiff's 
horses  out  of  a  pasture  so  that  they  were  lost,  a  statement  by  the 
defendant's  servant  while  he  was  driving  the  horses  out  of  the 
pasture  to  the  effect  that  if  the  horses  were  found  there  again  they 
would  be  scattered  so  that  they  would  never  be  found,  is  not  adr 
missible  against  the  defendant.  This  was  not  a  statement  with 
reference  to  the  act  then  being  done,  but  declared  a  purpose  to  do 
a  similar  act  in  the  future  in  a  particular  manner,  and  as  such, 
is  inadmissible  as  part  of  the  res  gestae.^^     Statements  by  either 

morning  after  the  loss,  were  held  ad-  ^Garriek  v.   Florida,  etc.,  &  P.   R. 

missible      against      the      corporation.  Co.,  53  S.  C.  448,  31  S.  E.  224,  324,  69 

Morse  v.  Connecticut  River   R.   R.,   6  Am.  St.  Rep    874. 

Gray  (Mass.),  450.  ="  Illinois  Central  R.  R.  Co.  v.  Wins- 

=' Nashville,  etc.,  R.  R.  Co.  v.  Mes-  low   (Kv.,  1905).  84  S.  W.  1175. 

sine,  1  Sneed   (Tenn.),  220.  ^"Lunian  v.  Golden  Ancient  Chan- 

='Alhngton    &    Curtis    Manufactur-  nel    Min.    Co.,    140   Cal.   700,    74   Pac. 

ing  Co.  V.  Detroit  Reduction  Co.,  133  307. 

Mich.   427,   95   N.   W.   562,   565;    See  ^^  Stanton  v.  Baird  Lumber  Co.,  132 

also,  Merrow  v.  Goodrich,  92  Me.  393,  Ala.  635,  32  So.  299. 

42  A.  797,  68  Am.  St.  Rep.  512.  "Waggoner  v.  Snodv.   (Tex.,  1905), 

85  S.  W.  1134. 


Sec.  157.] 


Admissions. 


515 


a  special  or  general  agent  after  the  close  of  a  transaction,  and  not 
part  of  the  res  gestae  are  inadmissible  against  the  principal.-*^ 
Admissions  by  an  agent  two  or  three  weeks  after  the  completion 
of  the  agency  are  not  competent  against  the  principal."^ 


33  statement  of  liability  of  princi- 
pal to  pay  certain  bill.  Butters  Salt 
&  Lumber  Co.  v.  Vogel,  135  jNIicli. 
381.  97  N.  W.  757. 

3^  Small  V.  McGovern,  117  Wis.  608, 
94  N.  W.  651. 

Thus,  in  an  action  against   a   rail- 
way company  to  recover  damages  for 
running  over  and  killing  cattle,  state- 
ments   made    by    the    engineer,    some 
time  after  the  killing,  are  not  admis- 
sible.    Price  V.  N.  J.  Railroad  Co.,  31 
N.   J.   L.   229;      Aldridge   v.   Midland 
Blast   Furnace   Co.,   78   Mo.   539.     In 
Hanover    Railroad    Co.    v.    Coyle,    55 
Penn.  St.  402,  where  a  peddler's  cart 
had    been    overthrown    by    a    railway 
train,  in  an  action  for  the  injury  the 
plaintiff  was   permitted  to  prove  the 
declarations    of    the    engineer    at   the 
time  of  the  accident,  for  the  purpose 
of  showing  the  train  was  behind  time, 
and  thus   show  carelessness   and  neg- 
ligence as   a   part   of   the   res  gestae. 
The  supreme  court  say:   "The  record 
shows    no   bill    of   exceptions   to   this 
evidence ;   but  if  it  did,  we  cannot  say 
that  the   declaration   of   the   engineer 
was  no  part  of  the  res  gestae.     It  was 
made  at  the  time  of  the  accident,  in 
view   of   the   goods   strewn   along   the 
road  by  the  breaking  up  of  the  boxes ; 
and  it  seems  to  have  grown   directly 
out  of  and  immediately  after  the  hap- 
pening of   the  fact.       The  negligence 
complained   of   being  that   of  the   en- 
gineer himself,  we  cannot  say  that  his 
declarations,  made  upon  the   spot,  at 
the  time,  and  in  view  of  the  effects  of 
his  conduct,  are  not  evidence  against 
the  company  as  a  part  of  the  transac- 
tion itself."  In  Luly  v.  Hudson  River 
Railroad    Company,     17    N.    Y.     131, 
where  the  suit  wa's  for  alleged  negli- 
gence in  running  against  the  plaintiff, 
the  plaintiff  was  allowed  to  prove  by 
a   policeman,  who   was   present  when 
the    accident    occurred,    that    he,    be- 
ing called  on  by  the  crowd  then  pres- 
ent,   arrested   the   driver   of   the   car, 
r.nd  while  getting  out  of  it   and  out 
of  the  crowd,  being  asked  why  he  did 


not    stop    the    car,   he    said    that   the 
brake   was    out   of   order.        And   the 
Court  of  Appeals  reversed  the  case  be- 
cause    this    evidence    was    admitted, 
holding   that   this   declaration   of   the 
driver  was  not  a  part  of  the  res  ges- 
tae.    It  was  no  part  of  the  driver's 
act  for  which  the  company  was  sued. 
The  court  say:   "It  was  not  made  at 
the  time  of  the  act  so  as  to  give  it 
quality  and  character.       The   alleged 
wrong   was   complete   when    he    made 
the    statement,    and    the    driver    was 
only  endeavoring  to  account  for  what 
he    had    done."      So    in    Belfontaine 
Railroad  Company  v.  Hunter,  33  Ind, 
335,  5  Am.  Rep.   201,  the  court  held 
that  in  an  action  against  a  railroad 
company  by   an   administrator   to   re- 
cover  damages   for   the   death   of   his 
decedent,   occasioned   by  the   collision 
of  a  locomotive  and  train  of  cars  and 
a  wagon   in  which   the  decedent  was 
crossing   the   track,    the   declarations 
of  the  fireman  employed  on  the  loco- 
motive  at  the   time   of   the    collision, 
made    on    the    arrival    of    said    train 
bearing  the  body  of  the  deceased  at  a 
station  one  mile  from  the  place  of  the 
accident,    were    not    admissible    as    a 
part  of  the  res  gestae.     And  in  Lum 
V.   Bryant,   9   Gray    (Mass.),   245,   in 
an    action    to    recover    damages    sus- 
tained by  a  collision  between  the  de- 
fendant's and  the  plaintiff's  carriage, 
evidence  that  the  defendant's  servant, 
who  had  charge   of  his  carriage,   im- 
mediately    after    the    collision,    and 
while  the  defendant  was  being  taken 
from    his     carriage,    and    while    the 
crowd   was   about,    said   the   plaintiff 
was  not  to  blame,  yet  the  court  held 
that   this   declaration   of   the    defend- 
ant was  not  admissible  as  a  part  of 
the   res  gestae.     The   court   say:   "It 
was  made  after  the  accident  occurred 
and  the  injury  to  the  plaintiff's  car- 
riage had  been  done.     It  did  not  ac- 
company the  principal  act  or  tend  in 
any  way  to  elucidate  it.     It  was  only 
the    expression    of    opinion    about    a 
past  occurrence  and  not  a  part  of  the 


il6 


Evidence. 


[Cliap.  10 


But  where  tlie  declarations  or  admissions  of  an  agent  relate  to 


res  gesiac."  It  is  not  more  compe- 
tent because  made  immediately  after 
the  accident  than  if  made  a  week  or  a 
month  afterward.  Land  v.  Tyngs- 
borough,  9  Cush.  (Mass.)  36.  State- 
ments made  by  the  captain  of  a  pas- 
senger steamer  soon  after  the  injury 
of  a  passenger  by  the  lurching  of  the 
vessel,  that  the  'place  was  dangerous 
by  reason  of  the  absence  of  a  hand- 
rail, and  that  he  could  have  it  reme- 
died, were  held  inadmissible.  Ameri- 
can S,  S.  Co.  V.  Landreth,  102  Penn. 
St.  131,  48  Am.  Rep.  196.  In  Packet 
Co.  V.  Clough,  20  Wall.  (U.  S.)  528, 
the  court,  in  reference  to  such  admis- 
sion, said:  "The  captain  of  a  pas- 
senger steamer  is  empowered  to  re- 
ceive passengers  on  board,  but  it  is 
not  necessary  to  this  power  that  he 
be  authorize'd  to  admit  tliat  cither 
his  principal  or  any  servant  of  his 
principal  has  been  guilty  of  negli- 
gence in  receiving  them.  There  is  no 
necessary  connection  between  the  ad- 
tnission  and  the  act."  And  the  same 
is  true  as  to  statements  made  by  a 
conductor,  engineer  or  other  employee 
of  a  railway  "company,  after  an  acci- 
dent. Virginia,  etc.,  R.  R.  Co.  v. 
Sayres,  26  Gratt.  (Va.)  351;  Robin- 
son V.  Fitchburg  R.  R.  Co.,  7  Gray 
(Mass.),  92;  Griffin  v.  Montgomery 
R.  R.  Co.,  26  Ga.  Ill;  Hawker  v. 
Baltimore,  etc.,  R.  R.  Co.,  15  W.  Va. 
C28,  36  Am.  Rep.  825. 

In  a  New  York  case  the  defendant 
agreed  to  pay  to  the  plaintiff  a  sum 
of  money,  in  consideration  of  the 
plaintiff  "sufTering  his  wife  fo  live 
separate,  and  delivering  to  hex  cer- 
tain property.  In  a  suit  for  the 
money,  the  wife's  declarations  that 
she  had  received  the  property  were 
held  admissible  against  the  defend- 
ant, she  being  his  agent  for  this  pur- 
pose, and  her  receipt  was  held  evi- 
dence of  the  delivery,  as  also  was  her 
parol  admission.  Fenner  v.  Lewis, 
10  John.    (X.  Y.)   38,  44,  45. 

In  a  Pennsylvania  case,  the  defend- 
ant having  written  to  the  plaintiflf 
that  he  would  be.  accountable  with 
W.  for  any  contract  he  would  make 
for  the  purchase  of  goods,  in  an  ac- 
tion for  goods  sold  to  W.  it  was  held 
that  a   letter  from  W.  subsequent  to 


the  purchase,  acknowledging  the  pur- 
chase of  goods  from  the  plaintlH',  was 
evidence  against  the  defendant. 
Meade  v.  M'Dowell,  5  Binn.  (Penn.) 
195.  Accordingly  it  is  said  the  let- 
ters of  an  agent  cannot  be  received  in 
evidence  to  prove  facts  stated  in  them. 
He  is  a  competent  witness,  and 
should  be  sworn  to  prove  these.  But 
his  letters  may  be  received  to  show 
what  facts  he  has  stated  in  the  coursfe 
of  his  business  as  agent,  in  order  to 
explain  upon  what  motives  and  prin- 
ciples the  party  recei\iiig  them 
acted ;  though  the  facts  stated  must 
be  proved  otherwise.  Blight  v.  Ash- 
ley, 1  Pet.   (U.  S.  C.  C.)    15,  21. 

In  a  Connecticut  case,  in  assumpsit 
for  money  had  and  received,  the 
plaintiflf  offered  in  evidence  what  the 
defendant's  agent  who  received  the 
money  said,  and  it  was  lield  that 
what  he  said  and  did  in  that  transac- 
tion was  tbe  same  as  said  and  done 
by  the  defendant.  Perkins  v.  Burnet, 
2' Root  (Conn.),  30.  To  repel  a  plea 
of  usury  to  a  promissory  note,  the 
plaintiff'  offered  to  show  what  the  de- 
fendant's son  had  said  while  acting 
as  agent  in  relation  to  the  transaction 
in  question,  and  it  was  held  admis- 
sible. Mather  v.  Phelps,  2  id.  150. 
So  an  entry  of  deposit  by  the  agent 
of  a  bank  in  a  bank-book  accompany- 
ing the  deposit,  is  a  conclusive  ad- 
mission against  the  bank ;  otherwise 
if  made  afterwards.  ^Manhattan  Co. 
V.  Lydig,  4  John.  (N.  Y.)  389.  So 
the  entry  in  a  bank-book  of  a  dealer, 
of  the  amount  of  his  deposit,  made 
by  a  teller  or  clerk  of  the  bank,  is  an 
entry  by  the  bank  agent.  He  is  not 
the  agent  of  the  dealer,  and  a  mistake 
may  be  shown  by  the  latter.  Me- 
chanics &  Farmer's'  Bank  in  the  city 
of  Albany  v.  Smith,  19  John.  (X.  Y.) 
115.  So'  in  assumpsit  for  the  price 
of  hides  sold  by  a  butcher,  against 
the  proprietors  of  a  tan  yard,  their 
general  manager  of  the  yard,  who  had 
power  to  buy  hides  and  sell  leather, 
gave  the  plaintiff  three  certificates  of 
different  dates;  one  that  $1,640.75 
was  due  the  plaintiff  on  settlement; 
one  that  $2,843.25,  and  another  that 
$1,297.30  worth  of  hides  had  been  re- 
ceived by   him   from   such   a   da/  to 


Sec.  157.] 


Admissions. 


517 


a  matter  not  within  the  scope  of  his  authority,  they  are  not  ad- 


such  a  day,  mentioning  the  time  in 
each  certificate,  and  signed  his  name ; 
and  these  certificates  were  held  ad- 
missible to  charge  the  defendants. 
Marshall,  Ch.  J.,  said  the  proprie- 
toi"s  themselves  might  have  given 
such  papers,  and  their  general  man- 
ager had  the  s-Tma  power;  and  the 
court  held  all  the  papers  receivable 
in  evidence  against  the  defendants, 
including  that  which  certified  the 
settlement  or  balance  struck.  Barry 
V.  Foyles,  1  Pet.  (U.  S.  C.  C.)  311; 
Rawson  v.  Adams,  17  John.  (N.  Y. ) 
130.  So  to  prove  a  loss  on  an  ad- 
venture shipped  to  New  York,  the  ac- 
count of  sales  by  the  factor  was  re- 
ceived in  evidence  on  proving  his 
signature  to  the  account.  Rich  v. 
Broadfield,  1  Dall.  (U.  S.)  16. 
And  the  log-book  of  a  ship  is 
evidence  for  the  owner ;  but  it  must 
be  proved  to  have  been  regularly 
made.  Proof  of  the  mate's  handwrit- 
ing in  many  parts,  and  that  a  sailor 
saw  him  writing  "  log-book  of  the 
Lydia,"  the  name  of  the  ship,  during 
the  voyage,  is  not  enough.  United 
States  V.  Mitchell,  2  Wash.  (U.  S. 
C.  C. )  478.  Such  strict  proof 
would,  of  course,  not  be  neces- 
sary where  it  is  used  against  the 
owner.  So  the  declaration  of  a 
sheriff  or  auctioneer  as  to  what 
property  is  up  for  sale,  as  whether 
it  be  the  whole  farm  or  only  a  certain 
parcel  of  it,  is  admissible.  Wright 
V.  Deklyne,  1  Pet.  (U.  S.  C.  C.)  199, 
201,  204.  And  in  assumpsit  for  ten 
kegs  of  dollars,  against  a  bank,  the 
plaintilT  proved  that  the  kegs,  being 
brought  to  the  bank  agains't  the 
plaintiff's  will,  were  paid  out  for  the 
debts  of  the  bank  by  the  direction  of 
H.  and  B.,  president  and  cashier  pro 
tempore.  And  this  was  held  admis- 
sible, though  H.  and  B.  were  both 
within  reach  of  a  subpoena,  because 
a  president  and  cashier  of  a  bank 
may  direct  money  in  the  bank  to  be 
paid  out  for  the  debts  of  the  institu- 
tion. But  the  subsequent  admission 
of  the  president  as  to  a  bag  of  dol- 
lars which  had  been  brought  into  the 
bank  and  converted  by  a  stockholder, 
that  this  was  the  plaintiff's  property, 
was    held     inadmissible.       The    City 


Bank  of  Baltimore  v.  Bateman,  7  H. 
&  J.  (Md.)  104.  So  on  a  libel  against 
goods,  as  being  forfeited  by  illegal  ex- 
portation, in  a  trade  with  the  In- 
dians, the  declarations  and  acts  of 
the  exporters'  agent,  or  of  any  one 
who  acted  in  conjunction  with  the  ex- 
porters in  the  course  of  their  busi- 
ness, were  held  admissible  as  evidence 
against  the  goods.  American  Fui* 
Co.  V.  United  States,  2  Pet.  (U.  S.  C. 
C. )  358.  So,  in  a  statute  proceed- 
ing to  recover  for  labor  done  on  the 
respondent's  ship,  he  insisted  that 
the  libelant  had  been  paid  by  a  note 
of  W.  and  C,  former  owners.  The 
libelant  insisted  that  the  note  Mas 
not  paid,  but  renewed  and  discoimted, 
the  money  going  to  W.  and  C.  A 
witness  for  the  libelant  proved  tliat 
W.  and  C.'s  clerk  came  to  the  libelant, 
and  requested  him  to  renew  the  note, 
which  he  did.  Objected  that  this 
was  hearsay,  and  •  that  the  clerk 
should  be  sworn  as  a  witness ;  but 
the  objection  was  overruled.  The 
court  say,  being  clerk  of  W.  and  C, 
he  was  their  agent;  and  his  sayings 
and  doings  were  matters  of  fact.  Ship 
Portland  v.  Lewis,  2  S.  &  R.  (Penn.) 
197,  203.  And  though  the  acts  of  a 
deputy  surveyor  in  surveying  State 
lands  for  A.  cannot  be  given  in  evi- 
dence for  him  without  producing  the 
public  authority  under  which  the  dep- 
uty acted,  yet  the  unauthorized  act 
of  the  deputy,  done  or  attempted  by 
the  procurement  of  A.,  may  be  given 
in  evidence  against  him.  Unger  v. 
Wiggins,  1  Rawle  (Penn.),  331.  So 
in  an  action  by  the  owners  of  a  ves- 
sel on  a  policy  of  insurance,  the  pro- 
test of  the  master  and  mariners  is 
admissible  evidence  for  the  plaintiffs, 
and  of  course  for  the  defendants.  Mil- 
ler v.  S.  C.  Ins.  Co.,  2  M'Cord  (S.  C), 
336;  Campbell  v.  Williamson,  2  Bay, 
237,  as,  for  instance,  as  to  the  cause 
of  deviation,  or  the  seaworthiness  of 
the  vessel.  Id.  The  plaintiff"  made 
an  agent  to  receive  certain  moneys 
collected  for  him  by  the  defendant. 
It  was  held  that  the  agent's  drafts  on, 
and  receipts  to,  the  defendant  fcr 
money,  his  lectors  in  the  course  of  the 
business  to  the  defendant,  and  an  ac- 
count   and    balance    struck    between 


518 


Evidence. 


[Chap.  16 


missible  against  bis  principal,  although  they  refer  to  acts  within 
his  authority  ;^^  and  this  has  been  held  to  be  the  rule  even  when 
the  admissions  of  the  agent  were  contained  in  a  sworn  answer 
to  a  bill  in  equity.^®  So  the  declarations  of  one  employed  merely 
to  deliver  goods  are  not  admissible  in  evidence  against  His  prin- 
cipal as  to  the  title  to  the  goods  delivered.^^  A  bank  cashier 
called  as  a  witness  in  an  action  between  third  parties  will  not 


them  in  respect  to  the  money,  and 
the  agent's  admission  of  payment  at 
the  time  of  so  settling,  were  all  evi- 
dence for  the  defendant.  The  agent 
need  not  be  made  a  witness  %  him. 
Thallhimer  v.  Brinkerhoff,  G  Cow. 
(N.  Y.)  90.  90,  100.  And  see  Sher- 
man V.  Crosby,  11  John.  (N.  Y. )  70. 
So  a  letter  from  the  debtor's  agent 
(authorized  to  do  the  act),  directing 
the  creditor  on  which  of  several  debts 
to  apply  certain  moneys  paid,  was 
held  admissible  to  prove  the  applica- 
tion of  the  pavment.  IMitchell  v. 
Dall,  2  H.  &  G.'  (Md.)  159,  170.  In 
a  New  York  case  the  party  had  em- 
ployed Fitch  as  agent  to  sell  for  him 
a  quantity  of  barilla,  who  sold  part 
to  the  defendant,  who  gave  his  note. 
The  barilla  was  in  truth  worth  noth- 
ing; and  in  an  action  on  the  note, 
the  defense  being  that  there  was 
fraud,  the  defendant  proved  the  dec- 
larations of  Fitch  in  respect  to  the 
quality  of  the  remaining  quantity  on 
hand,  after  the  sale  to  the  defendant. 
The  court  thought  that,  as  Fitch  was 
agent  for  selling  the  whole,  his  dec- 
larations, while  engaged  in  that 
agency,  were  admissible  against  the 
plaintiff.  But  the  cause  went  otf 
mainly  on  another  point.  Welch  v. 
Carter,  1  Wend.  (N.  Y.)  185,  190, 
191. 

In  an  action  for  money  had  and  re- 
ceived, it  appeared  that  tlie  defend- 
ants' agents  had  directions  to  receive 
the  money  and  remit  it  to  the  defend- 
ants. A  letter  from  the  agents  ad- 
mitting they  had  received  "it — that 
letter  being  answered  by  one  from  the 
defendants — was  therefore  received  in 
evidence  against  the  defendants,  as  a 
declaration  made  in  the  course  of 
their  business  as  agents.  The  object 
of  the  letter  was  to  show  the  money 
to  be  in  the  hands  of  the  defendants' 
agents.  Coates  v.  Bainbridye,  5  Bins. 


58.  In  assumpsit  on  a  promise  to 
remove  certain  mud,  which  the  de- 
fendant's foreman  had  asked  leave  to 
throw  on  plaintitl's  land,  on  cleans- 
ing a  stream  for  the  benefit  of  the  de- 
fendant's mill,  the  plaintiff  offered  to 
prove  what  the  defendant's  clerk  in 
his  counting-house,  and  who  also  had 
the  internal  management  of  the  mill, 
had  directed  the  foreman  as  to  clean- 
ing the  stream  and  taking  away  the 
mud.  It  was  held  inadmissible.'  The 
act  of  throwing  out  the  mud  was  not 
within  tiie  ordinary  business  of  the 
defendant  as  a  miller,  and  the  clerk 
Who  managed  the  mill  could  not, 
therefore,  interfere.  Suppose,  said 
Best,  C.  J.,  the  defendant's  house  had 
been  out  of  repair,  the  repairing 
would  not  come  within  the  business 
of  the  clerk  as  agent  in  the  counting- 
room.  Shumack  v.  Lock,  10  B.  :Moore, 
39.  In  a  North  Carolina  case  the  ac- 
knowledgment of  the  cashier  of  a 
bank,  that  a  note  had  been  paid,  was 
received,  and  held  prima  facie  evi- 
dence against  the  bank.  State  Bank 
v.  Wilson,  1  Dev.  (N.  C.)  484.  So 
where  the  wife  of  the  plaintiff,  who 
was  shown  to  be  the  plaintiff's  agent 
for  the  purpose,  declared  that  the  de- 
mand in  question  had  been  sold  by 
her  to  F.,  this  Mas  held  admissible  as 
evidence  against  the  plaintiff,  and 
that  any  one  might  safely  treat  with 
F.  concerning  it.  Curtis  v.  Ingham, 
2  Vt.  287,  289.  In  this  case  the 
plaintiff"  had  left  the  State,  leaving 
the  whole  control  of  this  business 
with  his  wife. 

='MYebb  V.  Alexander,  7  Wend.  (N. 
Y.)  281;  Barclay  v.  Howell,  6  Pet. 
(U.    S.)    404. 

'°  Leeds  v.  Marine  Ins.  Co.,  2 
Wheat.   (U.  S.)   380. 

^'Goltra  V.  Penlard,  42  Oregon,  18, 
77  Pac.  129. 


Sec.  157.] 


Admissions. 


519 


ordinarily  be  held  the  agent  of  tlie  bank,  so  that  his  admissions 
bind  it  in  the  absence  of  peculiar  or  exceptional  circumstances 
showing  him  its  agent.^^  The  declarations  of  an  agent  in  posses- 
sion of  property  simply  for  the  purpose  of  managing  it  and  car- 
ino-  for  it  for  his  principal  are  not  admissible  against  the  prin- 
cipal to  show  title  to  the  property  in  another,  as  the  agent  had 
no  authority  to  bind  the  principal  as  to  title.^^ 


'« Harrison  Co.  v.  State  Sav.  Bank 
(Iowa,  1905),  103  N.  W.  121. 

2°  Sweeney  v.  Sweeney,   119  Ga.   76, 
46  S.  E.  76. 

Thus    in    an    action    for    work   and 
labor,    the    plaintiff    was    allowed    to 
prove  by  D.  the  declaration  of  the  de- 
fendant's   agent    concerning   buildings 
erected  by  the  plaintiff  on  tlie   farm 
of  a  third  person,  with-  whom  it  did 
not    appear    the    defendant    had    any 
connection.  This  was  left  to  the  jury, 
with    instructions    that,    if    they    be- 
lieved   D.,    they    should    find    for    the 
plaintiff.     It  was  held  erroneous,  for 
no  connection  was  shown  between  the 
defendant  and  the  third   person.     Ir- 
vine V.  Buckaloe,  12  S.  &  R.    (Penn.) 
35.     In  a  Virginia  case  the  defendant, 
by    r.,    his   agent,    purchased    certain 
trees  of  the  plaintiff's  intestate.       It 
was   held   that   a   subsequent   written 
account,   made   by    F.,   of   the   timber 
cut  under    F.'s   direction   for   the   de- 
fendant,  was   not   admissible    in   evi- 
dence  against   him.     Pasteur   v.   Par- 
ker,  3   Rand.    (Va.)    458.     So   in   as- 
sumpsit for  the  price  of  pig  iron,  the 
delivery  was  sought  to  be  proved  by 
the     certificate     of     the     defendant's 
clerk,  dated  November,  1815,  that  the 
quantity  of  pig  iron  delivered  to  him 
by  the  plaintiff   in   October  and   No- 
vember,  1814,  was  so  much.     It  was 
held    inadmissible,    it    being    a    past 
transaction,   and  not  a   receipt   given 
at    the    time,    which,    semblc,    would 
have    been    evidence.        The    plaintiff 
should  have  sworn  the  clerk  as  a  wit- 
ness,       Glasser   v.    Reno.    6    to.   &   R. 
(Penn.)    206.       Again:   In   an  action 
for  money  had  and  received,  the  claim 
arose  from   the  defendant  having  re- 
ceived  money   from   the   treasury  for 
certain  rations  furnished  to  the  army 
by    one    Bradshaw.        The    plaintiff's 
claimed  that  Bradshaw.  now  deceased, 
was    their    agent    in    furnishing    the 


rations;  and  the  defendant,  that  he 
was  his  agent  in  furnishing  them.  The 
defendant  offered  in  evidence  a  writ- 
ten statements  of  facts. by  Bradshaw, 
respecting  the  matter  in  controversy, 
made  to  be  submitted  to  referees  in  a 
controversy  between  himself  and  one 
Duncan,  and  it  was  held  inadmissible. 
The  plaintiffs  then  ofl'ered  in  evidence 
Bradshaw's  letter  denying  that  the 
defendant  had  supplied  the  rations; 
but  this  was  in  answer  to  certain  dec- 
larations of  his  to  the  contrary, 
which  the  defendant  had  given  in  evi- 
dence, and  it  was  held  admissible 
onlj'-  in  this  point  of  view,  but  not  as 
proof  of  an  independent  fact.  Turn- 
bull  V.  O'Hare,  4  Yeates  (Penn.),  446. 
In  an  action  for  money  paid  as  a  pre- 
mium in  effecting  an  insurance  for 
the  defendant,  W.,  as  tlie  defendant's 
agent,  requested  the  plaintift'  to  in- 
sure, and  gave  to  the  plaintiff  his 
(W.'s)  own  note,  but  failed.  The 
plaintiff  ofl'ered  to  prove  the  subse- 
quent declarations  of  W.,  that  the  de- 
fendant would  pay  the  debt,  and  it 
was  held  inadmissible.  The  reason 
given  is,  that  W.  was  agent  only  to 
efl'ect  the  policy,  not  to  bind  the  de- 
fendant by  a  subsequent  promise  to 
pay.  Millick  v.  Peterson,  2  Wash. 
(U.  S.  C.  C.)   31. 

So  in  ejectment  founded  on  an  en- 
try and  survey,  the  admission  of  the 
plaintiff's  agents  and  surveyors  that 
they  had  agreed  to  a  survey  which 
should  not  interfere  with  the  defend- 
ants, was  held  inadmissible  against 
the  plaintiff,  not  being  made  in  the 
course  of  their  acts  as  agents,  but 
afterwards.  Meredith  v.  Kennedy, 
Litt.  Sel.  Cas.  (Ky.)  516.  See 
M'Cormick  v.  Barnum.  10  Wend.  (N. 
Y.)  104,  and  Barclay  v.  Howell,  6 
Pet.  (U.  S.)  498.  But  in  the  New 
York  case  the  surveyor  was  dead,  and 
it  was  a  declaration  as  to  boundaries. 


520 


EVII>ENCE. 


[Chap.  16 


Sec.  158.  Knowledge  of,  or  Notice  to,  Agent  affects  Principal, 
when. 

It  is  well  settled  that  notice  to  an  agent,  actual  or  implied,  rela- 
tive to  a  matter  affecting  his  agency  and  while  such  agency  exists, 
is  notice  to  the  principal,  and  such  is  also  the  rule  as  to  a  knowl- 
edge of  facts  relating  to  the  business  of  his  agency,  acquired 
while  acting  for  his  principal  ;^  and  this  rule  applies  with  equal 


and  in  the  case  from  Peters,  the  dec- 
larations of  the  surveyor  were  while 
he  was  acting  as  such.  In  trover 
against  four,  two  of  them  owners,  and 
two  agents  of  the  owners  in  managing 
a  warehouse,  the  two  agents  admit- 
ted that  they,  by  the  owners'  orders, 
converted  the  p]aintift''s  whiskey, 
which  he  had  at  the  warehouse;  but 
their  admissions  were  held  inadmissi- 
ble, as  they  were  not  made  at  the 
time  of  their  doing  the  acts  com- 
plained of.  Roberts,  etc.,  v.  Burks, 
Litt.  Sel.  Cas.  Ky.  411.  In  a  New 
York  case  the  plaintiff  appointed  an 
agent  to  settle  with  and  receive 
money  from  the  defendant  for  a  debt. 
The  defendant,  to  prove  a  settlement 
and  payment  between  him  and  the 
agent,  offered  in  evidence  an  account 
current,  to  which  the  agent  had  made 
an  affidavit,  and  it  was  held  not  ad- 
missible, it  being  the  admission  of 
past  acts  of  the  agent,  and  the  ad- 
mission not  within  the  scope  of  his 
authority.  Thallhimer  y.  Brincker- 
hotr,  4  Wend.  (N.  Y.)  394.  So  the 
declarations  of  one  who  had  been  an 
agent  to  make  a  contract,  after  he 
had  made  it,  though  he  was  still  an 
agent  to  make  like  contracts  for'  the 
same  party,  were  held  inadmissible  to 
affect  his  principal  in  respect  to  the 
terms  or  construction  of  the  former 
contract;  for  such  were  not  a  part 
of  the  res  gestae.  Haven  v.  Brown, 
7  Me.  421. 

So  the  declarations  of  an  agent 
that  he  had  given  license  to  enter  and 
cut  timber  are  not  admissible  against 
his  principal,  being  an  admission  of 
what  was  past.  Hubbard  v.  Elmer,  7 
Wend.  (N.  Y.)  446.  The  maker  gave 
a  proposition  for  time  on  his  note  at 
the  bank  to  the  cashier,  who,  as  he 
promised,  submitted  the  proposition 
to  the  directors,  and  came  and  told 


the  maker  that  the  proposition  had 
been  accepted.  It  was  proposed  to 
give  this  in  evidence  against  the  bsink, 
the  cashier  being  the^r  general  agent, 
^vhich  fact  was  admitted.  Bui  it  was 
held  that,  notwithstanding,  this  in- 
formation was  not  part  of  the  rea 
gestae.  He  did  not  himself  make  the- 
contract  for  time;  it  was  made  by  the 
directors.  He  merely  carried  the  pro- 
posal and  brought  back  the  answer; 
and  the  information  being  but  hear- 
say, it  was  held  the  agent  must  be 
sworn.  Grafton  Bank  v.  Woodward, 
5  N.  H.  301.  An  agent  appointed  to 
superintend  the  e.xecution  of  a  survey 
in  a  suit  of  chancery  has  no  authority 
to  admit  the  notoriety  of  any  object 
whose  notoriety  may  be  material  in 
the  cause.  Eobinson  v.  Morgan,  Litt. 
Sel.  Cas.  (Ky. )  56.  In  detinue  for 
the  plaintiff's  goods,  pawned  without 
his  autliority  to  the  defendant,  a 
pawnbroker,  the  only  evidence  to 
charge  the  defendant  Mith  possession 
was  the  admission  of  the  defendant's 
shopman,  made  at  the  house  of  the 
plaintiff's  attorney,  and  Tindal,  C.  J., 
delivering  the  opinion  of  the  court, 
said  if  the  transaction  had  been  one 
in  the  ordinary  trade  and  business  of 
the  defendant  as  a  pawnbroker,  in 
which  trade  the  shopman  was  his 
agent  or  servant,  a  declaration  that 
his  master  had  received  the  goods 
might  probably  have  been  evidence,  as 
it  might  be  held  within  the  scope  of 
the  shopman's  authority  to  give  an 
answer  to  an  inquiry  made  by  any 
person  interested  in  goods  deposited 
with  the  pawnbroker.  But  he  said 
this  deposit  was  an  ordinary  loan  at 
five  per  cent.,  out  of  his  line  as. 
pawnbroker,  a  ease  in  respect  to  which, 
the  shopman  had  no  authority. 

^  Wood  on  Railways,  457 ;  Walker  v. 
Ayers,  1  Iowa  449;  Astor  v.  Wells,  4 


Sec.  158.] 


Admissions. 


521 


force  where  a  person  in  the  first  instance  assumed  to  act  for  an- 
other without  authority,  but  whose  act  in  that  respect  was  ratified 
by  the  principal— the'  rule  being  that  if  he  takes  the  benefit  of 
the  act,  he  must  take  it  charged  with  notice  of  such  matters  as 
were  at  the  time  within  the  knowledge  of  the  agent.^  But  in. 
order  to  impute  the  knowledge  of  the  agent  to  the  principal,  it 
must  be  shown  that  he  acquired  the  knowledge  ichih  acting  as 
such  agent;  and  it  must  relate  to  the  business  of  his  agency.^ 

Upon  this  proposition  the  authorities  are  by  no  means  uni- 
form, and  many  respectable  decisions  are  to  be  found  sustaining 
both  the  affirmative  and  the  negative ;  but  it  seems  to  us  that  as 
the  rule  in  either  view  is  arbitrary,  and  as  the  notice  at  best  is 
only  constructive,  and  may  never  in  fact  have  been  given  to  the 
principal,  it  should  be  restricted  to  such  notice  and  knowledge  of 
facts  as  is  received  by  the  officer  or  agent,  not  only  at  a  time  when 
he  was  an  officer  or  an  agent,  hut  also  ivhen  he  was  acting  as  such, 
and  that  the  rule  which  is  adopted  in  some  of  the  cases,* — that  the 


Wheat.  (U.  S.)  466;  Reed's  Appeal, 
34  Penn.  St.  207;  Hough  v.  Richard- 
son, 3  Story  (U.  S.  C.  C.)  659;  Sut- 
ton V.  Dillaye,  3  Barb.  (N.  Y.)  529; 
Varnum  v.  Milford,  4  McLean  (U.  S. 
C.  C. )  93 ;  Patten  v.  Merchants',  etc., 
Ins.  Co.,  40  N.  H.  375;  Wiley  v. 
Knight,  27  Ala.  336;  Keenan  v.  Mis- 
souri Ins.  Co..  12  Iowa,  126:  Ingalls 
V.  Morgan,  10  N.  Y.  17S;  Felter  v. 
Field,  ILa.  An.  SO:  Mundine  v.  Pitts, 

14  Ala.   84;    Smyth   v.   Oliver,   31   id. 

39;  Page  v.  Brunt.  18  111.  37;  Musser 

V.    Hvde.    2    W.    &    S.     (Penn.)    314; 

Fowler  v.  Halbert,  4  Bibb   (Ky.)   52: 

Boyd  V.  Vanderkamp.  1  Barb.   (N.  Y.) 

Ch.   273;    Owens  v.   Roberts,  46  Wis. 

258;   Pepper  v.  George,  51   Ala.   190; 

Roueh  V.  Karr,  18  Kan.  329;  Allen  v. 

Poole,    54,   Miss.    323;     Saulsbury    v. 

Wimberley,    60    Ga.    78:     Canipau  v. 

Konan,  39  Mich.  362;    Hier  v.  Odell, 

18   Hun    (N.  Y.)    314;   Sooy  v.  State, 

41  N.  J.  L.  394. 

'Hovey  v.  Blanchard,  13  N.  H.  145. 
'  Brown  v.  Bankers,  etc.,  Tel  Co.,  30 

Md.  39.     See  cases  cited  post,  n.,  p. 
*  Fairfield  Savings   Bank   v.   Chase, 

72  Me.  226;  Distilled  Spirits,  11  Wall. 
( U.  S. )   356  ;  Lebanon  Savings  Bank  v. 

Hallenback,  29  Minn.  322;  Dresser  v. 

Norwood,  17  C.  B.  N.  S.  466;  Ingalls 
r.  Morgan,    10  N.  Y.    178;    Hovey  v. 


Blanchard,  13  N.  H.  145;  Choteau  v. 
Allen,  70  Mo.  290.     But  see   Ford  v. 
French,   72   id.   250;     First    National 
Bank  of  Highstown  v.  Christopher,  41 
N.  J.  L.  435 ;  29  Am.  Rep.  262.    A  dis- 
tinction    has     been     taken     between 
knowledge    of    illegality    or    want    of 
consideration  of  a  note  by  a  director 
who  acts  with  the  board  in  discount- 
ing it,  and  such  knowledge  on  the  part 
of  a  director  who  is  not  present  and 
acting  with  the  board  when  the  dis- 
count is  made.     In  the  former  case  it 
has  been  held  that  the  bank  is  bound 
by  his  knowledge;   in  the  latter  it  is 
not.      Bank   of   the   United    States   v.. 
Davis,  2  Hill  (X.  Y.)  451;  North  Riv^ 
er  Bank  v.  Aymar,  3  id.  262 ;  National 
Security  Barik  v.  Cushman,  121  Mass. 
490:    Farmers',   etc..   Bank   v.   Payne, 
25    Conn.    444;     Farrell    Foundry    v. 
Dart,   26   id.   376;    National   Bank  v. 
Norton,  1  Hill  (N.  Y.)  572;  Washings 
ton  Bank  v.  Lewis,  2r2  Pick.  24 ;  The 
President,  etc.,  v.   Cornen,  37    N.  Y. 
320;  2  eal.  Cas.  in  Eq.  171,  note  to  Le 
Neve  V.  Le  Neve.     The  question  how 
far  the  knowledge  of  an  officer  of  a 
corporation,   which    he   acquired    out- 
side of  the  business   of  the  company, 
and  which  was  not,  in  fact,  communi- 
cated  to   the   corporation,    is   binding 
upon  it,  when  it  relates  to  dealings  be- 


622  Evidence.  [Chap.  16 

question  as  to  whether  such  notice  or  knowledge,  received  by  an 
agent  before  he  was  apjwinted  as  such,  shall  be  imputable  to  the 
principal,  depends  upon  the  circumstance  whether  the  fact  was 
^present  in  the  mind  of  the  agent  when  acting  for  the  principal, 
so  fully  that  he  could  not  have  forgotten  it — is  both  unreasonable 
and  unjust.  In  these  cases,  the  court  seems  to  lose  sight  of  the 
consequences  of  such  a  rule,  and  also  of  the  circumstance  that, 
while  the  rule  relative  to  such  knowledge  of  an  agent  rests  upon 
a  presumption  that  the  agent  would  do  his  duty  and  disclose  the 
facts  to  his  principal,  yet  the  presumption  is  irrebutable,  and  the 
principal  is  not  i>ermitted  to  show  that  the  agent  did  not  in  fact 
discharge  his  duty. 

This  rule  opens  up  a  new  field  of  inquiry  in  such  cases,  which 
is  one  of  fact,  to  wit,  whether  the  fact  sought  to  be  imputed  to  the 
principal  luas  in  the  mind  of  the  agent  at  the  tini^e  of  the  trajhs- 
adion  in  reference  to  which  it  should  he  disclosed.  Who  should 
determine  this  fact  ?  If,  however,  as  seems  probable  from  the 
qualification  of  the  rule  by  the  courts — to  the  effect  that  the 
knowledge  must  be  so  fully  present  to  the  mind  of  the  agent  when 
acting  for  the  principal  that  he  could  not  have  forgotten  it — it  is 
intended    that    the    presumption   shall   be   irrebutable,    then   the 

tween  the  officer  and  the  corporation,  for  the  principal.  But  in  Ford  v. 
was  considered  by  the  chancellor  in  French,  ante,  it  was  held  that  knowl- 
Barnes  v.  Trenton  Gaslight  Co.,  27  N.  edge  of  facts  acquired  by  an  attorney 
J.  Eq.  33.  The  bill  was  filed  to  set  in  one  case  could  not  be  imputed  to 
aside  a  conveyance  made  by  executors  his  client  in  another  case.  In  Yenger 
in  fraud  of  the  powers  contained  in  v.  Banz,  5G  Iowa  77,  it  was  held  that 
the  will.  The  conveyance  was  made  to  the  principal  is  not  affected  by  in- 
Mr.  Potts,  who  was  the  legal  adviser  formation  imparted  to  his  agent  be- 
ef the  executors,  and  also  president  of  fore  the  agency  existed,  which  has  not 
the  gaslight  company.  Potts  conveyed  been  retained  in  mind  by  the  agent.  It 
directly  to  the  company,  and  the  bill  will  be  seen  that  in  all  these  cases  the 
charged  notice  on  the  defendants  sole-  doctrine  is  predicated  upon  a  doubt- 
ly  on  the  ground  that  at  the  time  of  ful  presumption  that  the  agent,  by 
the  conveyance  to  the  company  Mr.  reason  of  the  shortness  of  the  time 
Potts  was  its  president.  On  demur-  which  has  elapsed  since  the  informa- 
rer,  it  was  held  that  the  information  tion  was  received,  retained  it  in  mind 
which  came  to  Mr.  Potts'  knowledge,  at  the  time  of  the  transaction  for  the 
as  counsel  of  the  executors,  was  not  principal.  But  the  trouble  with  the 
constructively  notice  to  the  corpora-  rule  is,  that  while  the  presumption 
tion,  and  that  the  company  was  a  upon  which  it  rests  is  doubtful,  it  is 
bona  fide  purchaser  without  notice.  In  nevertheless  irrebuttable,  and  pre- 
Choteau  v.  Allen,  ante,  it  was  held  eludes  all  testimony  to  show  that  the 
that  the  principal  is  affected  with  agent  did  not  have  the  knowledge  in 
knowledge  ©f  such  facts  by  the  agent  mind,  and  that  he  did  not  in  fact  com- 
as the  agent  had  acquired  previously  municate  it  to  the  principal.  Depue, 
to  the  agency,  and  ichich  he  had  in  J.,  in  First  National  Bank  v.  Christo- 
mind  at  the   time   of  the  transaction  pher,  anie. 


Sec.  158.]  Ajdmissions.  523 

harshness  and  absurdity  of  the  rule  is  still  more  glaring.  Now, 
who  has  the  power  to  say  what  the  capacity  of  the  agent's,  memory 
is  ?  It  is  a  matter  demonstrated  by  universal  experience  that  the 
powers  of  memory  vary  greatly  in  different  persons,  and  while, 
one  person  will  remember  even  trifling  circumstances  for  a  long 
period,  yet  other  equally  competent  persons  will  forget  the  most 
important  facts  within  a  few  hours.  So,  too,  it  is  well  under- 
stood that  circumstances  may'  exist  at  the  time  of  a  transaction 
which  suppress  the  remembrance  of  important  facts  connected 
therewith,  until  it  is  too  late  to  make  use  of  them.  There  is  not 
probably  a  business  man  who  has  not  had  the  truth  of  this  propo- 
sition demonstrated  in  his  own  experience ;  consequently,  as  there 
is  and  can  be  no  presumption  that  a  person  carries  in  his  mmd 
for  any  considerable  period  a  recollection  of  every  circumstance 
that  he  has  had  an  acquaintance  with,  there  is  no  reason  for  the 
doctrine  referred  to.  This  being  so,  it  seems  to  us  that  the  only 
reasonable  and  just  rule  in  reference  to  imputing  the  knowledge 
of  an  agent  to  his  principal,  is  that  which  is  so  universally 
adopted,  confining  it  to  knowledge  of  facts  relating  to  the  agency, 
and  acquired  at  a  time  when  he  was  discharging  the  duties  of  his 
agency.^     In   England  the  rule  is  now  as  stated  in  the  Maine 

•Astor  V.  Wills,  4  Wheat.  (U.  S.)  Baltimore,  10  Md.  517;  Commercial 
466-  Reed's  Appeal,  34  Penn.  St.  207;  Bank  v.  Cunningham,  24  Pick.  (Mass.) 
Walker  v  Ayers.  1  Iowa  449:  Hough  270;  Washington  Bank  v.  Lewis,  22 
V  Richardson.  3  Storv  (U.  S.)  659;  id.  24.  In  McComb  v.  Chicago,  etc., 
Sutton  V.  Dillave,  3 'Barb.  (N.  Y.)  R.  R.  Co.,  7  Fed.  Rep.,  it  was  held 
529;  Wiley  v.  Knight,  27  Ala.  336;  that  an  officer  of  a  corporation  can- 
Keenan  v.'Missouri^Ins.  Co.,  12  Iowa  not  be  made  a  party  to  a  bill  of  dis- 
126.  In  Mundine  v.  Pitts,  14  Ala.  84,  covery  when  he  did  not  derive  the  in- 
the  court  held  that  notice  to  an  agent  formation  in  his  official  capacity.  In 
or  counsel  when  he  is  engaged  in  an-  National  Bank  v.  Norton.  1  Hill  (N. 
other  business  at  another  time  will  Y.)  572,  it  was  held  that  notice  of 
hot  be  constructive  notice  to  his  prin-  dissolution  of  a  partnership,  published 
cipal  or  client  employing  him  after-  in  a  newspaper,  and  thus  accidentally 
wards.  See,  also,  to  the  same  effect,  reaching  one  of  several  directors  of  a 
Pepper  V.  George,  51  Ala.  190;  Plymp-  bank,  is  not  equivalent  to  actual  no- 
ton  V.  Preston,  4  La.  An.  356;  Musser  tice  to  the  bank.  Cowen,  J.,  said: 
V.  Hyde,  2  W.  &  S.  (Penn.)  314;  "He  happened  to  know  the  fact  of  di.s- 
Bracken'v.  Miller,  4  id.  102:  Bank  of  solution,  as  a  director  or  other  cor- 
United  States  v.  Davis,  2  Hill  (N.  Y.)  porator  may  do,  without  perhaps  be- 
452;  New  York  Central  Ins.  Co.  v.  ing  aware  that  the  bank  could  be 
Protection  Ins.  Co.,  20  Barb.  (N.  Y.)  prejudiced  by  it.  Not  having  any  in- 
468 ;  United  States  Ins.  Co.  v.  Shriver,  timation  that  it  was  material,  it  is 
3  Md.  Ch.'  381;  Miller  v.  Illinois  Cen-  too  much,  even  if  the  point  were  in 
tral  R.  R.  Co.,  24  Barb.  (N.  Y.)  312;  the  case,  to  insist  on  a  presumption 
Winchester  v.  Baltimore,  etc.,  R.  R.  that  he  ever  communicated  the  fact 
Co.,  4  Md.  231;  General  Ins.  Co.  of  to  the  board.  Not  having  acquired 
Maryland  v.  United  States  Ins.  Co.  of  the  knowledge  as  director,  there  is  no 


524 


Evidence. 


[Chap.  16 


case;  hut  dear  and  satisfactory  proof  is  required  that  the  facts 
were  so  present  in  the  agent's  mind.  How  is  the  fact  to  be  estab- 
lished ?  If  by  the  oath  of  the  agent,  and  he  states  that  the  fact  was 
present  in  his  mind,  but  that  he  did  not  communicate  it  to  the  prin- 
cipal, then  the  principal  is>'  made  to  suffer  for  the .  negligence  or 


room  for  presumption  either  on  the 
ground  of  duty  or  intent."  In  Bank 
of  United  States  v.  Davis,  2  Hill  ( N. 
Y. )  451,  where  a  bill  of  exchange  was 
sent  to  a  director  of  a  bank  to  be  dis- 
counted for  the  benefit  of  the"  drawer, 
and  the  former,  who  w^as  a  menibei 
of  the  board  who  ordered  the  dis- 
count to  be  made,  received  the  avails, 
alleging  that  the  discount  was  for  his 
own  benefit,  it  was  held  that  the  bank 
was  chargeable  with  knowledge  of  the 
fraud.  The  court  said:  "The  general 
rule  is  undisputed  that  notice  to  the 
agent  is  notice  to  the  principal,  if  the 
agent  comes  to  the  knowledge  of  the 
fact  while  he  is  acting  for  the  prin- 
cipal in  the  course  of  the  very  trans- 
action which  becomes  the  subject  of 
the  suit;  for  upon  principles  of  gen- 
eral policy  it  must  be  taken  for  grant- 
ed that  tlie  principal  knows  whatever 
the  agent  knows."  "I  agree  that  no- 
tice to  a  director,  or  knowledge  de- 
rived by  him  while  not  engaged  offi- 
cially in  the  business  of  the  bank, 
cannot  and  should  not  operate  to  the 
prejudice  of  the  latter.  This  is  clear 
from  the  ground  and  reason  upon 
which  the  doctrine  of  notice  to  the 
principal  through  the  agent  rests,  i'he 
principal  is  chargeable  with  this 
knowledge  for  the  reason  that  tlie 
agent  is  substituted  in  his  place,  and 
represents  him  in  the  particular 
transaction ;  and  as  this  relation, 
strictly  speaking,  exists  only  while 
the  agent  is  acting  in  the  business 
thus  delegated  to  him,  it  is  proper  to 
limit  it  to  such  occasions."  North 
River  Bank  v.  Aymar,  Hill  (X.  Y. ) 
262,  275;  Fulton"  Bank  v.  New  York 
&  Sharon  Canal  Co.,  4  Paige  Ch. 
(N.  Y.)  127.  In  La  Farge  Ins.  Co.  v. 
Bell,  22  Barb.  (N.  Y.)  54,  it  was  held 
that  an  insurance  company  taking 
mortgages  subsequent  in  date  to  an 
unrecorded  deed  of  the  same  prem- 
ises is  not  chargeable  w-ith  construct- 
ive notice  of  such  deed  from  the  fact 
that  the  grantor  and  mortgagor  was 


at  the  date  of  both  deed  and  mortgage 
a  director  m  the  insurance  company. 
The  court  said:  "If  his  position  as  a 
director  could  make  him  the  asrent,  or 
rather  identify  him  entirely  with  the 
plaintiffs  in  such  sort  as  to  charg*^ 
them  with  constructive  notice  of  all 
the  facts  with  which  he  was  personal- 
ly acquainted,  as  to  the  title  to  lands 
in  which  they  had  any  interest,  in  any 
case,  it  cannot  be  so  when  he  did  not 
become  concerned  as  their  especial  or 
transact  business  in  their  behalf. 
Most  clearly  it  cannot  be  the  case 
where  the  facts  concerned  his  own 
private  affairs,  and  the  transaction 
was  one  in  which  he  was  dealing  with 
the  company  as  a  third  party  on  his. 
own  behalf,  and  acting  for  himself 
with  and  against  them."  In  General 
Ins.  Co.  V.  United  States  Ins.  Co.,  10 
]\Id.  517,  it  was  held  that  notice  given 
to  a  director  of  a  corporation,  pri- 
vately, or  which  he  acquires  from  ru- 
mor, or  through  channels  open  to  all 
alike,  and  which  he  does  not  com- 
municate to  his  associates  at  the 
board,  will  not  bind  the  corporation. 
In  P'armers  and  Citizens'  Bank  v. 
Pajnie,  25  Conn.  444,  it  was  held  that 
the  knowledge  of  a  bank  director,  as 
to  the  object  for  which  commercial 
paper  was  delivered  to  a  party  offer- 
it  it  to  the  bank  for  discount,  the 
director  not  being  present  when  it  was 
offered  and  discounted,  and  not  hav- 
ing communicated  his  knowledge  to 
any  other  director  or  officer,  was  not 
notice  to  the  bank.  The  court  said: 
"The  general  rule  on  this  subject  is 
that  notice  of  a  fact  to  an  agent  is 
notice  to  the  principal  if  the  agent 
has  knowledge  of  it  while  he  is  act- 
ing for  the  principal  in  the  course  of 
the  transaction  which  is  in  question. 
And  this  rule  is  applicable  equally  to 
corporations  and  natural  persons. 
Hence,  knowledge  of  a  material  fact, 
imparted  by  a  director  of  a  bank  to 
the  board  of  directors  at  a  regular 
meeting  of  them,  is  obviously  notice 


Sec.  158.] 


Admissions. 


525 


fraud  of  his  agent  as  to  matters  occurring  before  his  agency  com- 
menced, and  when  he  had  no  possible  reason  to  apprehend  such 
consequences,  and  when  there  is  no  possible  way  of  evading  them. 
This  rule  would  make  it  exceedingly  dangerous  for  corporations 
or  individuals  to  employ  agents  at  all ,  and  in  this  country,  at 


to  the  bank.  It  has  also  been  decid- 
ed in  some  cases,  that  notice  to  either 
of  the  directors,  wliile  engaged  in  the 
business  of  the  bank,  is  notice  to  the 
bank.  Wliether,  however,  the  knowl- 
edge of  a  director  who  is  present  at 
a  meeting  of  a  board  of  directors  when 
paper  is  discounted,  on  his  applica- 
tion and  for  his  benefit,  is,  under  the 
rule  which  has  been  stated,  to  be  im- 
puted to  the  bank,  is  a  question  on 
which  there  is  a  diversity  of  opinion, 
but  one  which  it  is  unnecessary  here 
to  determine.  Whether  such  knowl- 
edge should  be  treated  as  notice  to  the 
bank  in  that  case  would  probably  de- 
pend on  the  question  whether  the  di- 
rector should  be  deemed  to  have  been 
acting  as  a  director  and  in  behalf  of 
the  bank  when  the  transaction  took 
place."  In  Farrell  Foundry  v.  Dart, 
26  id.  370,  where  a  defective  deed  had 
been  recorded,  and  a  director  of  a 
corporation  not  acting  as  an  agent 
thereof,  and  having  no  management  of 
its  business  otherwise  than  as  direct- 
or, went  to  the  town  records  to  as- 
<!ertain  the  situation  of  the  land,  and 
there  saw  the  record  of  the  deed,  but 
did  not  inform  the  corporation  or  any 
of  its  agents,  it  was  held  that  the 
corporation  was  not  by  reason  of 
these  facts  chargeable  with  knowledge 
of  the  deed.  Louisiana  State  Bank  v. 
Senecal,  13  La.  525.  In  Housatonic 
Bank  v.  Martin,  1  Met.  (Mass.)  294, 
it  was  held  that  knowledge  of  facts 
by  a  mere  stockholder  in  an  incorpor- 
ated manufacturing  company  or  bank 
is  not  notice  to  -the  corporation  of  the 
existence  of  those  facts.  In  Smith  v. 
South  Royalton  Bank,  32  Vt.  341,  it 
Avas  held  that  if  a  bank  director  acts 
in  behalf  of  the  bank  in  a  transaction 
of  which  the  bank  takes  the  benefit, 
notice  to  the  director  at  the  time  of 
any  fact  material  to  the  transaction 
is  notice  to  the  bank.  In  Houseman 
V.  Girard  Mut.  B.  &  L.  Association, 
81  Penn.  St.  256,  L.,  desiring  a  loan 
irom  plaintiffs,  to  be  secured  by  mort- 


gage on  his  property,  plaintiffs'  con- 
veyancer ordered  searches  for  liens ; 
through  L.  he  procured  a  certificate 
from  the  recorder  that  there  were  no 
mortgages  on  the  property ;  on  this 
the  loan  was  made.  There  being  prior 
mortgages  given  by  L.,  not  certified, 
on  the  sale  of  L.'s  property  by  the 
sheriff  the  proceeds  did  not  reach  to 
pay  the  loan.  It  was  held  that  the 
recorder  was  liable  to  the  plaintiffs 
for  the  loss,  and  the  employment  of 
L.  to  procure  the  certificate  did  not 
affect  the  plaintiffs  with  his  knowl- 
edge. The  court  said:  "It  is  urged 
that  by  the  employment  of  the  owner 
as  the  agent  for  this  purpose  the  de- 
fendants are  affected  w'ith  this  knowl- 
edge of  the  existence  of  the  mortgage 
which  was  omitted  in  the  certificate. 
This  is  a  very  familiar  principle  and 
well  settled.  But  it  is  equally  well 
settled  that  the  principal  is  only  to 
be  affected  by  knowledge  acquired  in 
the  course  of  the  business  in  which  the 
agent  was  employed.  This  limitation 
of  the  rule  is  perfectly  well  established 
by  our  own  cases,  and  it  is  not  neces- 
sary to  look  further.  Hood  v. 
Fahnestock,  8  Watts  (Penn.)  489; 
Bracken  v.  Miller,  4  W.  &  S.  (Penn.) 
110;  Martin  v.  Jackson,  27  Penn.  St. 
508.  It  is  a  mistake  to  suppose  that 
it  depends  upon  the  reason  that  no 
man  can  be  supposed  to  always  carry 
in  his  mind  a  recollection  of  former 
occurrences,  and  that  if  it  be  proved 
that  he  actually  had  it  in  his  mind  at 
the  time,  the  rule  is  dift'erent.  It 
may  support  the  reasonableness  of 
the  rule  to  consider  that  the  memory 
of  men  is  fallible  in  the  very  best, 
and  varies  in  different  men.  But  thft 
true  reason  of  the  limitation  is  a 
technical  one,  that  it  is  only  during 
the  agency  that  the  agent  represents 
and  stands  in  the  shoes  of  his  prin- 
cipal. Notice  to  him  is  then  notice  to 
his  principal.  Notice  to  him  twenty- 
four  hours  before  the  relation  com- 
mences is  no  more  notice  than  twenty- 


)26 


EviDEISrCE. 


[Chap.  16 


least,  it  lias  no  considerable  footliokl,  and  in  England  the  con- 
trary rule  was  held  by  its  ablest  judges. 


four  hours  after  it  had  ceased  would 
be.  Knowledge  can  be  no  better  than 
direct  actual  notice.  It  was  incum- 
bent on  the  plaintiff  to  show  that  the 
knowledge  of  the  agent,  to  use  the  ac- 
curate language  of  one  of  our  cases, 
'was  gained  in  the  transaction  in 
which  he  was  employed.'  Tliere  was 
not  only  no  evidence  of  this  offer  by 
the  plaintiff,  but  it  was  plain  that  it 
had  been  gained  before,  and  in  an  en- 
tirely different  transaction.''  See,  also, 
Farrington  v.  Woodward,  82  id.  259. 
In  Willis  V.  Vallette,  4  Met.  (Ky.) 
186,  it  was  held  that  notice  to  an 
agent  is  constructive  notice  to  his 
principal  only  wlien  acquired  in  the 
course  of  the  transaction  in  which  he 
is  acting  as  agent.  To  the  same  ef- 
fect, Howard  Ins.  Co.  v.  llalscy,  8  N. 
Y.  271.  In  McConnick  v.  Wheeler,  30 
111.  114,  it  was  held  that  a  party 
cannot  be  charged  with  notice  of  facts 
within  the  knowledge  of  liis  attorney, 
of  which  the  latter  acquired  knowl- 
edge while  acting  as  attorney  for  an^ 
other  person.  The  court  said:  ''The 
English  courts  have  recently  mani- 
fested a  disposition  to  depart  from 
this  rule,  but  we  deem  it  a  principle 
just  in  itself,  and  founded  on  wis3 
considerations  of  policy."  In  Ford  v. 
French,  72  Mo.  250,  it  was  brielly  held 
that  the  knowledge  acquired  by  an 
attorney  while  acting  for  one  client 
will  not  affect  another  client,  for 
whom  he  is  acting  at  the  same  time 
in  a  different  case.  But  on  the  other 
hand:  In  Donald  v.  Beals,  57  Cal. 
399,  two  mortgages,  one  to  D.  and  one 
to  X.,  were  deposited  in  a  county 
clerk's  office  for  record,  April  15,  the 
one  to  D.  at  four  o'clock,  and  the  one 
to  N.  at  five  o'clock.  By  a  clerical 
mistake  it  was  noted  on  the  D.  mort- 
gage that  it  was  deposited  on  April 
18.  This  mistake  occurred  in  the  re- 
cord book  and  in  the  certificate  an- 
nexed to  the  mortgage.  X.  sold  and 
assigned  her  mortgage  to  C,  who  em- 
ployed an  attorney  to  examine  as  to 
the  character  of  the  security.  C.  did 
not  examine  the  record,  but  his  at- 
torney had  full  knowledge  that  tiiG 
mortgage  to  X.  was  not  prior  in  re- 


cord. The  attorney  acted  both  for 
C.  and  X'^.  It  was  held  that  his 
knowledge  was  imputable  to  C.  Said 
the  court:  "Tlie  knowledge  of  an  at- 
torney is  the  imputed  knowledge  of 
his  client.  It  is  a  well-settled  doc- 
trine of  English  law,  that  if  the 
agent,  at  the  time  of  effecting  a  pur- 
cliase,  have  knowledge  of  any  prior 
lien,  trust  or  fraud  allecting  the  prop- 
erty, no  matter  when  he  acquired 
such  knowledge,  his  principal  is  af- 
fected thereby," — citing  Distilled  Spir- 
its, 11  Wall.'  (U.  S.)  367.  As  to  the 
question  of  notification  to  a  corpora- 
tion through  an  agent,  the  American 
cases  are  as  follows:  In  Commercial 
Bank  v.  Cunningham,  24  Pick. 
(Mass.)  270,  it  was  held  that  the  cir- 
cumstance that  the  indorser  of  a  dis- 
counted note  was  a  director  of  the  dis- 
counting bank,  is  not  constructive  no- 
tice to  the  bank  that  the  note  was 
made  for  his  accommodation.  In 
Washington  Bank  v.  Lewis,  22  id.  24, 
a  bank  director  got  possession  of  a 
note  for  discount  for  the  owner,  and 
instead  he  pledged  it  to  the-  bank  for 
his  own  debt.  It  was  held  that  as  he 
did  not  act  in  his  capacity  of  director 
in  procuring  the  discovmt,  the  bank 
was  not  a  fleeted  by  his  knowledge  of 
the  circumstances  under  which  he  pro- 
cured it.  The  court  said:  "The  ar- 
gument is,  that  though  Thompson  was 
not  the  agent  of  the  bank,  yet  as  he 
was  a  director,  his  knowledge  of  the 
facts  under  which  the  note  was  pro- 
cured is  the  knowledge  of  the  bank. 
If  this  argument  could  be  maintained, 
it  would  follow  that  if  a  director 
should  procure  a  note  to  be  discount- 
ed, by  tlie  fraudulent  concealment  of 
material  facts  which  he  was  bound  to 
disclose,  or  even  by  false  pretenses, 
the  bank  would  have  no  remedy.  II 
Thompson  had  been  authorized  to  dis- 
count this  note,  and  did  discount  it, 
the  argument  might  hold  good.  What- 
ever a  director  or  other  agent  of  a 
bank  may  do  within  the  scope  of  his 
authority,  would  bind  the  bank  so  as 
to  make"  them  responsible  to  the  per- 
son dealt  with.  But  in  the  present 
case  Thompson  was  the  party  apply- 


Sec.  158.]  Admissions.  527 

''Where  the  counsel  comes  to  have  notice  of  the  title  in  aur 
other  affair,"  savs  tlie  Lord  Keeper,'  "...  that  shall  not 
be  such  a  notice  as  to  bind  the  party."  "If  a  counsel  or  at- 
torney," says  Lord  Hardwicke/  "is  employed  to  look  over  a  title, 
and  by  some  other  transaction  foreign  to  the  business  in  hand  has 
notice,  this  shall  not  effect  the  jxirchaser ;  for  if  this  was  not  the 
rule  of  the  court,  it  would  be  of  dangerous  consequence,  as  it 
would  be  an  objection  against  the  most  able  counsel,  because  of 
course  they  would  be  more  likely  than  others  of  less  eminence 
to  have  notice,  as  they  are  engaged  in  a  gTeat  number  of  affairs 
of  this  kind."  In  the  case  previously  cited  from  the  United 
States  Supreme  Court,^  which  seems  to  be  the  authority  upon 
which  the  courts  of  this  country  which  have  adopted  this  doctrine 
predicate  it, — the  court  did  not  undertake  to  support  its  position. 
by  any  line  of  reasoning,  but  was  satisfied  to  accept  it  simply  be- 
cause the  English  courts  had  adopted  it,  which  is  hardly  sufficient 
to  commend  the  doctrine  to  the  better  class  of  our  courts. 

Sec.    159.  Admissions   by   Guardians,   Nominal   Parties   to   the 
Record,  Executors,  Etc. 

While  admissions  made  by  a  party  to  a  suit  in  interest  are  re- 
ceivable in  evidence  against  him,  yet  admissions  made  by  a  merely 
nominal  party  are  not  admissible.  So  an  unauthorized  admis- 
sion of  a  trustee  for  bondholders  does  not  bind  the  bondholders,^ 
and  guardians  of  minors  cannot  make  admissions  against  the  in- 

ing  for  the  discount,  and  was  not  act-  during  his  agency.     Security  Bank  v, 

ing  as  director,  nor  could  he  with  pro-  Cushman,    121    Mass.    490;*   Lunt    v. 

priety    so    act.      The    courts    in    this  Woodhall,  113  Mass.  391. 

country  which  have  adopted  the  rule  '  Preston  v.  Tubbin,  1  Vern.  287. 

that  a  principal  shall  be  charged  with  ^  Lowther   v.    Carlton,    2   Atk.    242. 

knowledge    of    facts    obtained    by    an  See,  also,  Warrick  v.  Warrick,  3  Atk. 

agent    before    he    entered    upon    his  294,  Le  Neve  v.  Le  Neve,  3  id.  646; 

agency,  are  few,  and  the  reasons  giv-  Street    v.    Whittaker,    Barnard,    220; 

en    by    them    for    this    extraordinary  Cross  v.  Smith,  1  M.  &  S.  545;   Hein 

doctrine  are  not  such  as  will  be  likely  v.   Mill,    13    Ves.    113;    Mountford    v. 

to    commend    them    to   other   courts.""  Scott,  3  Madd.  34.     But  in  this  case, 

Tagge  V.  Tennebsee  National  Bank,  9  upon  appeal,  Lord  Eldon  made  an  in- 

Heisk.    (Tenn. )    479:    Hart   v.   Farm-  timation    of    a    possible   exception"  to 

ers'  Bank,  33  Vt.  252;   Fairfield  Sav-  this  rule,  foreshadowing  the  doctrine 

ings  Bank  v.  Chase,  72  Me.  226;  Dis-  we  have  combated  in  the  text,  which 

tilled   Spirits,   11   Wall,    (U.   S.)    356.  has   lately   been    seized   upon   by   the 

Some   Massachusetts   cases   are   some-  English  courts  as  a  pretext  for  adopt- 

times   cited    as    sustaining   this   rule,  ing  the  rule  so  foreshadowed  by  him. 

but  upon  examination  it  will  be  seen  'Distilled  Spirits,  ante. 

that   the    knowledge    imputed    to    the  '  L'nity  Co.  v.  Equitable  Trust  Co., 

principal  was   acquired  by   the  agen*,  204  111.  595,  68   N.  E.  R.  654. 


-528 


Evidence. 


[Chap.  16 


terests  of  their  wards.^  Thus,  if  the  assignee  of  a  bond  sues  the 
obligor  in  the  name  of  the  original  obligee,. or  if  a  cestui  que  trust 
brings  an  action  in  the  name  of  his  trustee,  or  if  the  assignee  of 
any  chose  in  action  brings  suit  thereon  in  the  name  of  the  as- 
signor, as  the  plaintiff  is  only  nominally  so,  the  real  plaintiff  is 
not  bound  by  his  admissions,  and  they  are  not  admissible  in  evi- 
dence against  him.^    And  even  though  a  receipt  has  been  given  by 


*  Knights  Templar  &  Masons'  Life 
Indemnity  Co.  v.  Crayton,  209  111. 
550,  70  X.  E.  R.  106G,  where  guardian 
stated  that  holder  of  insurance  policy 
of  which  his  wards  were  beneficiaries, 
committed  suicide.  Proofs  of  death 
made  by  a  guardian  for  beneficiaries 
in  a  life  insurance  policy  are  not  ad- 
missible against  his  wards  in  an  ac- 
tion on  the  policy.  Stevens  v.  Con- 
tinental Casualty*  Co.,  12  X.  D.  463, 
97  N.  W.  862. 

=  Bent  V.  McKinstrv,  4  Minn.  204; 
Wynne  v.  Glidwell,'  17  Ind.  446; 
Bates  V.  Ableman.  13  Wis.  644:  Myer3 
V.  McKenzie,  26  111.  26;  Frear  v.  Ev- 
•ertson,  20  John.  (X.  Y.)  142;  Canton 
V.  Baldwin,  27  Tex.  572 ;  Lewis  v. 
Long,  3  Munf.  (Va.)  136;  Peck  v. 
Crouse,  46  Barb.  (X.  Y.)  151;  Bart- 
lett  V.  Marshall,  2  Bibb  (Ky.)  470; 
Heywood  v.  Reed,  4  Grav  (Mass.) 
574:  Scott  v.  Hall,  6  B.  Mon.  {Kv.> 
285;  Palmer  v.  Cassin.  2  Cranch'C. 
Ct.  66;  State  v.  Jennings.  10  Ark. 
428;  Patrick  v.  McWilliams.  23  Ga. 
548;  Scott  V.  Coleman,  5  Litt.  (Kv.) 
349;  Gillighan  v.  Tebbetts,  33  Me. 
360;  Cooke  v.  Cooke,  29  Md.  538; 
Tapley  v.  Forbes,  2  Allen  (Mass.), 
20;  Wing  v.  Bishop,  3  id.  456;  Gar- 
land V.  Harrison.  17  Mo.  282;  Xor- 
ton  V.  Woods,  5  Paige  (X.  Y.).  249; 
Hanna  v.  Curtis.  1  Barb.  (X.  Y.) 
Ch.  263;  Wilson  v.  Hanson,  20  X. 
H.  375 ;  Burroughs  v.  Jenkins, 
Phill.  (N.  C.)  Eq.  33.  The  admis- 
■sions  by  the  assignor  of  a  chose  in 
action,  made  while  he  is  the  owner 
thereof  and  before  assignment,  are 
•evidence  against  his  assignee  and  all 
claiming  under  him.  Brown  v.  Mc- 
Graw,  20  Miss.  267;  Gallagher  v. 
Williamson,  23  Cal.  331.  Where  au 
assignment  for  the  benefit  of  credi- 
tors is  attacked  as  fraudulent,  it  is 
competent  for  the  creditors  attacking 
it  to  prove  the  declarations  of  the  as- 


signor, made  after  the  assignment 
was  delivered,  but  before  the  sched- 
ules were  made  out  and  attached, 
and  while  the  assignor  was  engaged 
in  preparing  them.  Wyckoff  v.  Carr, 
8  Mich.  44.  The  admissions  of  an 
insolvent  debtor  after  the  sale  of 
his  property  by  the  trustee  or  mort- 
gagee are  inadmissible  to  impeach 
the  title  of  the  purchaser,  unless  it  is 
shown  affirmatively  that  they  were 
assented  to  by  him,  or  made  in  his 
presence  without  objection  on  his* 
part.  Sutter  v.  Lackmann,  39  Mo. 
91 ;  Johnson  v.  Holdsworth.  4  Dowl. 
63 :  Payne  v.  Rogers.  1  Doug.  407 ; 
Manning  v.  Cox,  7  IMoore,  617;  In- 
nell  V.  Xewman.  4  B.  &  Aid.  419; 
Hickev  v.  Burt.  7  Taunt.  48;  Man- 
utstephen  v.  Brooke.  1  Chittv,  390; 
Legh  v.  Legh.  1  B.  &  P.  447.  The 
rule  was  formerly  otherwise  in  Eng- 
land. Bauerman  v.  Rodenius,  7  T. 
R.  659;  Crails  v.  D'Eth.  7  T.  R.  666, 
n.  b :  and  in  some  of  our  courts. 
Plant  V.  McEwen,  4  Conn.  544; 
Bulkley  v.  Landon.  3  Conn.  76. 
This  rule  was  predicated  upon  the 
ground  that,  a  chose  in  action  not 
being  assignable  so  as  to  enable  the 
assignee  to  sue  thereon  in  his  own 
name,  he  is  bound  by  the  acts  and 
sayings  of  the  assignor.  But  a  con- 
trary view  prevails  in  this  country, 
and  the  assignee  is  protected  against 
any  dealing  between  the  debtor  and 
assignor,  after  notice  to  the  former, 
or  any  set-off  acquired  after  such 
notice,  though  not  before,  will  be 
found  to  prevail  to  its  fullest  extent, 
being  in  some  of  the  States  partially 
sanctioned  by  statute  as  well  as  the 
authority  of  their  courts.  Welch  v. 
Mandevi'lle,  1  Wheat.  (U.  S.)  233; 
Mandeville  v.  Welch,  5  id,  277;  Cor- 
ser  V.  Craig.  1  Wash.  (U.  S.  C.  C.) 
424 :  Bholen  v.  Cleveland,  5  Mas 
(U.  S.  C.  C.)    174;  Green  v.  Darling, 


Sec.  159.] 


Admissions. 


529 


tie  nominal  plaintiff,  tte  parties  may  show  that  the  money  has 
never  in  fact  been  paid;^  or  if  in  fact  paid,  that  it  was  paid  after 
the  assignment.^  The  same  rnles  prevail  as  to  a  prochein  ami  or 
guardian,^  unless  made  in  good  faith,  in  a  pending  suit,  for  the 
purpose  of  the  trial  only,  in  which  case  their  admissions  are  bind- 
ing upon  the  same  principle  that  the  admissions  of  an  attorney 
would  be. 

Admissions  made  by  the  representative  of  an  estate  will  bind 
him  in  any  suit  against  him  in  his  representative  capacity,^  but 
they  are  not  evidence  against  his  co-administrators,*  nor  against 
a  special  administrator.^  Where  they  relate  to  acts  done  by  him, 
or  of  which  he  has  full  control  in  his  representative  capacity, 
which  become  material  to  be  shown  they  may  be  shown 
to  affect  the  estate;  but  as  a  rule,  where  they  relate  to 
matters  in  which  he  had'  no  part,  they  cannot  be  shown 
to  affect  the  estate,  even  when  made  in  a  bill  in 
equity."     But  the  declarations  of   an  executor,  a  party  to  the 


5  Mas.  (U.  S.  C.  C.)  201;  Wistar  v. 
Walker,  2  Browne  (Penn.),  166; 
McCullum  V.  Coxe,  1  Dall.  (U.  S.) 
189;  Field  v.  Biddle,  2  Dall.  (U.  S.) 
.172,  note;  Steele  v.  The  Phoenix 
Ins.  Co.,  3  Binn.  (Penn.)  306;  Can- 
by  V.  Ridgway,  1  Binn.  (Penn.)  496; 
Wheeler  v.  Hughes,  1  Dall.  (U.  S.) 
23;  Ingles  v.  Ingles'  Ex'rs.  2  Dall. 
(U.  S.)  49;  Bundle  v.  Ettwein,  2 
Yeates  (Penn.),  23;  Solomon  v.  Kira- 
niel,  5  Binn.  (Penn.)  232;  Bury  v. 
Hartman,  4  Serg.  &  Kawle,  177; 
Brindle  v.  Mcllvaine,  9  Serg.  & 
Rawle,  72;  Buchanan  v.  Taylor, 
Addis.  (Penn.)  155;Aldrieks  v.  Hig- 
gins,  16  Serg.  &  Rawle,  212;  Boul- 
den  V.  Hebel,  17  Serg.  &  Ravvlfe,  312; 
Metzgar  v.  Metzgar,  1  Rawle 
(Penn.),  227;  Stevens  v.  Stevens, 
Ashm.  (Penn.)  190;  Perkins  v.  Par- 
ker, 1  Mass.  117;  Andrews  v.  Her- 
ring, 5  Mass.  210;  Boylston  v.  Boyls- 
ton,  8  Mass.  465;   Dawes  v.  Boylston, 

9  Mass.   337;      Crocker   v.    Whitney, 

10  Mass.  316;  Jones  v.  Witter,  13 
Mass.  304;  Sergent  v.  Essex  Ry. 
Corp.,  9  Pick.  (Mass.)  202;  Farr  v. 
Hemmingway,  2  Const.  Rep.  (S.  C.) 
753;  Wadsworth  v.  Griswold,  1 
Harp.    (S.    C.)     17;      Stoney   v.    Mc- 

34 


Neil,  1  Harp.  (S.  C.)  156;  Smith  v. 
Lyons,  1  Harp.  (S.  C.)  334;  Ware  v. 
Key,  2  McCord  (S.  C),  373;  Strong 
V.  Strong,  2  Aik.  (Vt.)  373;  Lamp- 
son  v.  Fletcher,  1  Vt.  168;  Tichout 
v.  Cilly,  3  Vt.  415;  Clark  v.  Rogers, 
2  Me.  143;  Robbins  v.  Bacon,  3  id. 
346. 

*  Wallace  v.  Kelsall,  7  M.  &  W. 
273. 

"Mandeville  v.  Welch.  5  Wheat. 
(U.  S.)  277;  Welch  v.  Mandeville, 
1  Wheat.-  (U.  S.)   233. 

°  Because  they  are  officers  erf  the 
court  appointed  to  look  after  the  in- 
terests of  the  ward.  Sinclair  v.  Sin- 
clar,  13  M.  &  W.  640;  Webb  v. 
Smith,  Ry.  &,  M.  106;  Cowling  v. 
Ely,  2  Starkie,  366;  Morgan  v. 
Thorne,  7  M.  &  W.  408. 

^  Heywood  v.  Heywood,  10  Allen 
(Mass.),  105;  Emerson  v.  Emerson, 
16  Mass,  429;  Wilson  v.  Terry,  9 
Allen  (Mass.),  214;  Haleyburton  v. 
Kershaw,  3  Dessau.  (S.  C.)  105;  Al- 
len v.  Allen,  26  Mo.  327. 

»  Walkup  v.  Pratt,  5  H.  &  J.  (Md.) 
53. 

"Rush  V.  Peacock,  2  M.  &  R.  162. 

'"Fellows  V.  Fellows,  37  N.  H.  75; 
Crandall    v.    Gallup,    12    Conn.    365; 


530  EviDiLNCE.  [Chap.  16 

record,  who  is  also  a  legatee  under  the  \vill,  may  go  to  the  jury 
upon  the  trial  of  a  caveat  to  the  will;"  but  if  he  has  no  interest 
under  the  will,  his  declarations  are  not  admissible  upon  the  ques- 
tion of  its  validity.^  The  declarations  or  admissions  of  the  de- 
cedent are,  in  a  proper  case,  admissible  against  the  estate,^^  but 
not  for  it,  unless  they  form  a  part  of  the  res  gestae}^ 

Sec.  1 60,  Admissions  by  Privies.  (For  recent  cases  relating  to 
declarations  by  owners  of  real  estate  binding  their  successors 
see  ante  Sec.  138. 

Where  there  is  a  privity  of  interest  between  parties,  the  admis- 
sions of  one  are,  in  a  proper  case,  evidence  against  the  other, 
and  where  there  is  a  mutual  or  successive  relationship  to  the 
same  right  between  the  parties,  there  is  a  privity  of  interest,  and 
these  are  classified  as  privies  in  estate,  in  blood,  by  law,  and  by 
representation.  Privity  of  estate  exists  where  the  parties  are 
identified  in  interest  as  lessors  and  lessees,  donors  and  donees, 
joint  tenants,  etc.,  and  the  rule  admitting  the  admissions  of  one 
privy  in  estate  against  another,  is  never  extended  beyond  this 
identity  of  interest.  Privies  in  blood  embrace  heirs,  ancestors, 
and  coparceners.  Privies  by  representation  comprise  executors 
and  testators  and  administrators  and  intestates.  Privity  in  law 
arises  where  the  law,  without  privity  of  blood,  takes  an  estate 
from  one  and  bestows  it  on  another.-^  The  rules  admitting  this 
class  of  evidence  are  analogous  to  those  which  are  found  in  the 
doctrine  of  estoppels,  and  which  govern  the  admissibility  of  ver- 
dicts, judgments,  and  depositions.  Thus,  as  to  privies  in  blood 
and  privies  in  law,  the  declarations  of  a  deceased  occupier  of 
land,  that  he  rented  it  under  a  certain  person,  are  evidence  of  that 
person's  seizin  against  a  party  claiming  as  the  heir-at-law  of  such 
occupier,  to  explain  the  nature  of  the  occupation,  and  to  show  that 

El  wood  V.    Diefendorf,    5    Barb.    (N.  605;    Gardner    v.    Heflaey,    49    Penn. 

Y.)   398;   Dent  V.  Dent,  3  Gill.   (Md.)  St.    163;   Burckmyer  v."  Mairs,    Riley 

482;   Marshall  v.  Adams,  11   111.  37.  (S.  C),  208. 

"Williamson    v.     Nabers,     14     Ga.  "Cramer  v.  Pinckney,  3  Barb.    (N. 

286;     Peeples  V.  Stevens,  8  Rich.   (S.  Y.)    Ch.    466;      Wilson   v.   Wilson,  6 

C.)    398.  Mich.    9;  Perry   v.    Roberts,    17    Mo. 

'-Roberts  v.   Trewick,    13   Ala.    68.  36;  Whitfield  v.   Whitfield,   40  Miss. 

And  see  ante  p.  499,  notes  12-14.  352. 

"Hale  V.  Monroe,  28  Md.  98;  Ma-  'Co.   Litt.  271   a;    Beverly's  Case, 

lann    v.    Ammon,    1    Grant    (Penn.),  4  Coke,   123;      Carver  v.   Jackson,  4 

126;     Boone    v.    Thompson,    17    Tex.  Pet.    ( Q.  S.)    183. 


Sec.  160.]  Admissions  531 

it  was  not  adverse.^  The  declarations  of  an  intestate  are  evidence 
against  bis  administrator.^  But  in  an  action  by  a  special  ad- 
ministrator, appointed  during  tbe  absence  from  tbe  country  of 
the  executor  named  in  tbe  will/  it  was  beld  tbat  tbe  declarations 
of  tbe  latter,  made  by  bim  wbile  be  was  tbe  acting  executor,  were 
not  admissible  against  tbe  plaintiff.^ 

In  reference  to  admissions  made  by  persons  wbo  bave  been 
privies  in  estate  witb  tbose  against  wbom  tbe  admissions  are 
used,  tbe  evidence,  after  tbeir  decease,  is  generally  admissible 
on  a  different  principle,  as  being  a  declaration  against  interest. 
And  wben  tbe  persons  are  alive,  tbe  evidence  may  be  admissible 
in  some  cases,  as  explanatory  of  acts  done  or  forborne,  or  of  tbe 
fact  of  possession.  But  witbout  reference  to  eitber  of  tbese  prin- 
ciples, it  woulcl  seem  tbat  an  admission  by  a  proprietor  or  occu- 
pier possessing  any  interest  would  be  evidence  as  to  tbe  nature 
and  extent  of  tbat  interest,  against  a  party  wbo  was  in  privity  of 
estate  witb  bim.^  An  answer  in  cbancery  is  admissible  in  evi- 
dence against  a  privy  in  estate,'  and  a  statement  in  a  lease  by  a 
landlord  bas  been  beld  admissible  against  a  person  wbo  claims 
under  a  subsequent  lease  of  tbe  same  land.^ 

An  admission  by  a  tenant  in  possession,  wbo  is  defendant  in 
an  action  of  ejectment,  is  evidence  against  a  co-defendant,  wbo 
defends  as  a  landlord.^ 

But  is  seems  tbat  tbe  mere  declarations  of  tenants  will  not  in 

'Human  v.  Pettett,  3  B.  &  A.  223;  "Rush  v.  Peacock,  2  Mo,  &  R.  162. 

Peaceable   v.    Watson,    4.   Taunt.    16;  « Manton   v.    Thrupp,    9   Ring,    41; 

Bagaley    v.     Jones,     1     Camp.     367.  Walker  v.   Bioadstock,    1    Esp.   458; 

These  points   are   illustrated   by   the  Davies  v.  Pierce,  2  T.  R.  53;  Doe  v. 

doctrine  concerning  the  admissibility  Rickerby,  5  Esp.  4;  Tindal  v.  Whit- 

of  verdicts  against  privies  in  law  and  row,    1    C.    &    P.    22 ;      Pritchard    v. 

in  blood.     Locke  v.  Norbonne,  3  Mod.  Jauncey,  8  C.  &  P.  99. 

141;  Outran!    v.   Morewood,    3    East,  ^Sussex     v.     Temple,     Ld.     Raym. 

346;  Co.  Litt.  352  a;    Com.  Dig.  tit.  310.     In  this  case  the  court  went  too 

Estoppel,  B;   3  T.  R.  365.  far   in   determining  that   the   answer 

=  Smith  v.  Smith,  3  N.  C.  32.     The  might  be  read  against  persons  in  oc- 

plaintiflF    was    regarded    as    claiming  cupation  of  property,   on   proof   that 

under  the  intestate,  though,  in  fact,  it  was  the  reputation  of  the  county 

he  need  not  have  done  so.      See,  also,  that  the  lands   had   belonged  to  the 

Humphreys    v.    Bovce,    1    Mo.    &    R.  person  making  the  answer. 

140;     Jones  v.  Jones,  21  N.  H.  219;  'Crease  v.   Barrett,   1   C,  M.  &  R. 

Smith  V.  Morgan,  8  Gill   (Md.),  133;  932;   Strode   v.   Seaton,   2   Ad.   &   El. 

Harvey    v.     Anderson,     12    Geo.    69;  171. 

Colsan  V.  Philips,  7  Rich.   (S.  C.)    3,  '  Mee  v.   Litherland,   4    Ad,   &   El. 

See"  Brown  v.  Mailler,  14  N.  Y.   118.  384. 
*  Tavnton  v.  Hannay,  3  B.  &  P.  26. 


r)32  Evidence.  [CLap.  10 

general  be  evidence  against  tlieir  reversioners/''  and  the  declara- 
tions of  a  former  occupier  of  the  defendant's  land  have  been  held 
not  to  be  admissible  against  the  defendant,  upon  a  question 
■whether  the  plaintiff  had  an  easement  in  the  land." 

Although  ancient  books  of  survey  and  ancient  maps,  when  they 
are  not  in  the  nature  of  public  documents,  have  been  in  some 
cases  considered  as  not  being  legitimate  evidence  of  boundary, 
even  where  they  might  seem  upon  principle  to  be  receivable  up^n 
the  ground  that  the  boundary  was  a  matter  of  public  interest  and 
concern;  yet  this  species  of  evidence  is  frequently  available  by 
way  of  admission,  where  there  is  a  privity  of  estate  between  the 
person  against  whom  the  survey  or  map  is  used  and  the  person 
directing  it  to  be  made.  Thus  it  was  held  by  Holt,  C.  J.,  that 
if  A.  be  seized  of  the  manors  of  B.  and  C,  and  during  his  seizin 
of  both  he  causes  a  survey  to  be  taken  of  the  manor  of  B.,  and 
afterwards  the  manor  of  B.  is  conveyed  to  E.,  and  afterwards 
there  are  disputes  between  the  lords  of  the  manors  of  B.  and  C. 
about  their  boundaries,  tliis  old  survey  may  be  given  in  evidence.^^ 

But  as  a  person  cannot  be  regarded  a  privy  in  estate  with  a 
subsequent  possessor  of  the  estate,  except  during  the  time  when 
the  estate  was  in  his  own  possession,  it  has  been  held  that  an  an- 
swer in  chancery,  respecting  the  title  to  an  advowson,  filed  by  one 
who  had  been  formerly  seized  of  the  advowson,  but  who  had  con- 
veyed it  away  twenty  years  before  the  answer,  was  not  admissible 
against  a  person  claiming  the  advowson  through  him.^^  And  ad- 
missions by  a  mortgagor,  made  after  he  had  parted  with  his  in- 
terest by  a  settlement,  have  been  held  not  to  be  admissible  on 
behalf  of  a  mortgagee,  to  show  that  the  money  had  actually  been 
advanced  on  the  mortgage,  the  mortgagee  seeking  to  avoid  the 
settlement  as  being  voluntary." 

"By   Patterson,   J.,   in  Tickle  v.  Ld.  Raym.   734.       It  has  been   said 

Brown,  4  Ad.  &  EI.  378.  that  an  old  map  has  been  allowed  in 

"  Scholes  V.  Chadwick,  2  Mo.  &  "R.  evidence,   where   it   came    along  with 

507.  the    writings,  and    agreed    with     the 

"  Bridgman     v.     Jennings,     1     Ld.  boundaries    adjusted    in    an    ancient 

Kaym.  734;      B.   N.  P.  283;      Davies  purchase.     Gilb.  Ev.  78, 

V.  Pierce,  2  T.  R.  43;   Allott  v.  Wil-  '» Gully  v.   Exeter,  5  Bing.   171. 

kinson,   4   Gwill.    1585;      2   E.   &    Y.  "  Sweetland  v.  Webber,  1  Ad.  &  El. 

293.     That  such  a  survey  is  not  evi  733. 
dence  against  a   stranger;    Anon.,    1 


Sec.  ICl.J 


Admissions. 


533 


Sec.  i6i.  Rule  as  to  Privies  applicable  in  Cases  of  Personality. 

This  rule  as  to  privity  of  estate  is  generally  applied  to  cases 
of  real  property,  but  the  principle  is  equally  applicable  in  mat- 
ters relating  to  personalty,  where  an  identity  of  interest  exists; 
and  where  a  chattel  or  a  personal  contract  has  been,  assigned,  the 
declarations  of  the  assignor  are  generally  admissible  against  the 
assignee.  Thus  the  declarations  of  a  vendor  of  personal  prop- 
erty while  in  possession  after  the  sale  are  admissible  to  explain 
the  character  of  his  possession,^  but  the  vendor  of  personal  prop- 
erty cannot  after  a  sale  of  the  same  prejudice  the  vendee's  rights 
by  an  ex  parte  denial  of  the  bona  fides  of  the  transaction.^  It 
has  been  held,  upon  an  issue  between  two  persons,  whether  a 
third  person  died  possessed  of  certain  personal  property,  that 
evidence  might  be  given  of  a  declaration,  made  by  that  third 
person,  that  he  had  assigned  the  property,  the  party  against  whom 
the  declarations  were  adduced  claiming  under  that  person.^ 


>  Murphv  V.  Mulgrew,  102  Cal.  547, 
36  P.  857',  41  Am.  St.  Rep.  200. 

'  Glaucke  v.  Gerlick,  91  Minn.  282, 
98  N.  W.  94. 

MVilstead  v.  Levy,  1  M.  &  K.  138; 
Snelgrove  v.  Martin,  2  M'Cord,  241; 
Hatch  V.  Dennis,  10  Me.  244;  Gibble- 
house  V.  Strong,  3  Eawle  (Penn.), 
437;  Harrison  v.  Vallance,  1  Bing. 
45.  Ivat  V.  Finch,  1  Taunt.  141,  was 
an  action  of  trespass  for  taking  three 
mares,  the  property  of  the  plaintiff. 
The  defendant  who  was  lord  of  the 
manor,  justified  under  a  heriot  cus- 
tom ;  and  the  sole  question  between 
the  parties  was,  whether  one  Alice 
Watson,  the  tenant,  was  possessed  of 
the  mares  at  the  time  of  her  death. 
The  plaintiff  contended  that  she  had 
given  them  to  him  some  time  before, 
and  tendered  in  evidence  her  decla- 
rations to  that  effect.  These  were 
rejected  at  the  trial,  but  the  court 
above  held  that  they  were  admis- 
sible, as  they  were  against  her  inter- 
est, and  the  right  of  the  lord  de- 
pended upon  her  title.  But  where 
the  fact  of  this  dependence  is  not  di- 
rectly raised  by  the  issue,  such  dec- 
larations will  be  inadmissible;  and 
in  Stotherd  v.  James,  1  C.  &  K.  121, 
where  an  issue  was  directed  to  try, 
whether   goods    seized    in    A.'s    house 


at  the  suit  of  the  defendant  were  the 
property  of  the  plaintiff,  the  dec- 
larations of  A.  respecting  the  prop- 
erty Avere  held  to  be  inadmissible, 
inasmuch  as  on  that  nari'ow  issue 
the  defendant  would  succeed, 
whether  the  goods  belonged  to  A. 
or  to  any  other  person  besides  the 
plaintiff.  Had  the  issue  raised  the 
question,  whether  the  goods  be- 
longed to  A.  at  the  time  of  the  exe- 
cution, it  would  seem,  on  principle, 
that  his  declarations  made  before 
the  seizure  would  have  been  evi- 
dence against  the  defendant;  al- 
though in  Prosser  v.  Gwillim,  1  C. 
&  K.  95,  on  an  issue  similar  to  that 
which  was  raised  in  Stotherd  v. 
James,  Wiqhtman,  J.,  rejected  the 
debtor's  admissions,  on  the  ground 
that  the  execution  creditor  claimed 
adversely  to  him. 

These  admissions  by  third  persons, 
as  they  derive  their  value  and  legal 
force,  from  the  relation  of  the  party 
making  them  to  the  property  in 
question,  may  be  proved  by  any  com- 
petent loitness  who  heard  them,  with- 
out calling  the  party  by  whom  they 
were  made.  The  question  is,  whether 
he  made  the  admission,  and  not 
merely  whether  the  fact  is  as  he  ad- 
mitted it  to  be.     Its  truth,  where  the 


534: 


Evidence. 


[Chap.  16 


But  wliere  the  question  was  whether  certain  goods  which  had 
been  seized  under  a  -fi.  fa.  against  A.  were  his  property,  or  the 
property  of  the  plaintiff,  who  claimed  under  a  sale ;  and  in  order 
to  show  that  the  sale  was  fraudulent,  it  was  proposed  to  give  in 
evidence  a  statement  made  by  A.  when  the  execution  went  in,  and 
while  he  remained  in  possession,  it  was  ruled  that  the  evidence 
was  not  receivable.*  As  to  admissions  by  persons  in  possession 
of  chattels  or  negotiable  securities  being  evidence  against  subse- 
quent holders,  which  may  be  thought  analogous  to  admissions  by 
privies  in  estate,  it  appears  to  be  a  rule,  that  where  a  person  viust 
recover  through  the  title  of  another,  he  is  bound  by  the  declaration 
of  the  parti/  through  whom  he  claims.     Thus,  if  a  person  bring 


admission  is  not  conclusive  (and  it 
seldom  is  so),  may  be  controverted 
by  other  testimony,  even  by  calling 
the  party  himself,  when  competent: 
but  it  is  not  necessary  to  produce 
him,  his  declarations,  when  admissi- 
ble at  all,  being  received  as  original 
evidence,  and  not  as  hearsay.  Wool- 
way  V.  Eowc,  1  Ad.  &  El.  114; 
Brickell  v,  Hulse,  7  Ad.  &  El.  4.54. 
The  time  and  circumstances  of  the 
admission  are  to  be  considered,  and 
whenever  the  declarations  of  a  third 
person  are  offered  in  evidence,  on  the 
ground  that  the  party  against  whom 
they  are  tendered  derives  his  title 
from  such  person,  it  must  be  shown 
that  they  were  made  at  a  time  when 
the  declarant  had  an  interest  in  the 
property  in  question ;  because  it  is 
manifestly  unjust,  that  a  person, 
who  has  parted  with  his  interest  in 
property,  should  be  empowered  to  di- 
vest the  right  of  another  claiming 
under  him,  by  any  statement  which 
he  may  choose  to  make.  Doe  v.  Web- 
ber, 1  Ad.  &  El.  740.  Thus,  the  ad- 
mission of  a  former  party  to  a  bill  of 
exchange,  made  after  he  has  nego- 
tiated it,  cannot,  under  any  circum- 
stances, be  received  against  the  hold- 
er. Pocock  V.  Billing,  2  Bing.  269; 
Shaw  V.  Broom,  4  D.  &  R.  730;  Rob- 
erts V.  Justice,  1  C.  &  K.  93.  And 
where  a  person  had,  by  a  voluntary 
post-nuptial  settlement,  conveyed 
away  his  interest  in  an  estate,  and 
afterwards  had  executed  a  mortgage 
of  the  same  property,  it  was  held 
that  his  admission  that  money  had 
actually     been     advanced     upon     the 


mortgage  could  not  be  received  on 
behalf  of  the  mortgagee,  who  was 
seeking  to  set  aside  tlie  former  set- 
tlement as  voluntarv  and  void.  Doe 
V.  Webber,  1  Ad.  &  El.  733;  Gully 
v.  Exeter,  5  Bing.  171. 

*  Roberts  v.  Justice,  1  C.  &  K.  93. 

So  upon  the  trial  of  an  issue,  di- 
rected to  ascertain  whether  certain 
goods  which  had  been  seized  by  the 
sheriff  under  a  /J.  fa.  against  a  third 
party,  at  the  suit  of  the  defendant, 
were  the  goods  of  the  plaintiff,  who 
claimed  them  under  an  assignment, 
it  was  held  by  VVightman,  J.,  that  a 
statement,  made  by  the  third  party 
before  the  execution  went  in,  was  not 
admissible  on  behalf  of  the  plaintiff, 
as  the  execution  creditor  did  not 
claim  under  the  third  party,  but  ad- 
versely to  him.  Prosser  v'.  Gwillim, 
1  C.  &  K.  95.  And  upon  a  similar 
issue,  Maule,  J.,  rejected  the  decla- 
rations of  the  debtor  as  to  the  prop- 
erty in  the  goods,  upon  the  ground 
that,  if  they  did  not  belong  to  tlie 
plaintiff,  the  defendant  would  suc- 
ceed on  the  issue,  whether  they  be- 
longed to  the  debtor  or  to  any  other 
person  except  the  plaintiff.  Stothert 
V.  James,  1  C.  &  K.  121.  An  admis- 
sion by  a  person  who  takes  a  bank- 
rupt's goods  in  execution,  that  he 
knew  an  act' of  bankruptcy  liad  been 
committed,  is  not  evidence  against 
the  person  who  takes  the  goods  by 
assignment  from  the  sheriff,  where 
the  admission  is  subsequent  to  the 
assignment.  Deady  v.  Harrison,  1 
Stark.  R.  60. 


Sac.  IGl.] 


Admissions.  ^^^ 


an  action  upon  a  bill  of  exchange,  the  declaration  of  a  person 
^vho,  at  the  time  when  such  declaration  was  made,  was  holder  of 
the  bill,  and  who  had  not  parted  with  it  till  after  it  was  due,  is 
evidence  against  the  plaintiff,  being  made  by  one  according  to 
whose  title  his  own  must  stand  or  fall.^  So  in  an  action  by  the 
indorsee  against  the  acceptor,  where  the  defense  is  that  the  bill 
was  obtained  by  fraud,  declarations  of  the  drawer  to  that  effect 
are  admissible,  if  it  can  be  shown  that  the  plaintiff  was  privy  to 
the  fraud.'  ■        .    . 

But  it  seems  that  the  analogy  with  respect  to  the  admissions 
of  privies  in  estate  is  not  adhered  to  where  the  title  to  negotiable 
instruments  is  derived  from  persons  who  have  made  admissions, 
but  where  there  is  not  any  existing  identity  of  interest.     In  such 
cases,  the  right  of  a  person  holding  by  a  good  title  is  not  to  be 
cut  down  by  the  acknowledgment  of  a  former  holder  that  he  had 
no  title.     Thus,  in  an  action  by  the  indorsee  against  the  maker 
of  a  promissory  note  payable  with  interest  on  demand,  the  decla- 
rations made  by  the  payee,  whilst  the  note  was  in  his  possession, 
to  the  effect  that  he  gave  no  consideration  for  it  to  the  maker, 
were  held  inadmissible  for  the  defendant,  on  the  ground  that  the 
plaintiff  could  not  be  identified  with  the  payee,  the  bill  not  being 
overdue  at  the  time  of  the  indorsement.'^     The  declarations  were 
not  those  of  a  person  holding  the  negotiable  security  under  the 
same  circumstances  as  the  party  to  the  action.     It  has  been  held* 
that  as  the  indorser  of  a  promissory  note  does  not  claim  by  the 
title  of  the  indorser,  but  has  a  title  of  his  own  as  indorsee,  he 
ought  not  to  be  affected  by  any  declarations  of  the  indorser,— the 
note  not  being  taken  without  consideration,  or  after  it  was  due, — 

» Benson  v.  Marshall,  cited  in  Shaw       said    that    if    the    declarations    had 

V  Broom    4  D.  &  R.  731.     See.  also,       been  made  as  m  the  case  of  Kent  y. 
Beauchamp  v.  Parry,  1  B.  &  Ad.  89.       Lowen,   at  the   time   of  the   contract. 

« Peckham  v.  Potter,  1  C.  &  P.  232.  the   case   might   be  d.uerent.       It   13 

'Bavou^h    V.    ^v^hite,    4    B.    &    C.  to     be     observed     that     in     Kent    v. 

325;   explained  in  Woohvay  v.  Eowe.  Lowen,  the  letters  were  the  usurious 

1  Ad    &  El    116.     See,  also,  Phillips  contract   itself,   and   it   can    make  no 

V  Cole    10  Ad.  &  El.   106;   Smith  v.  diflFerence   whether   an   act  consist   of 
nV  Wruitz   R    &  M    212  oral  declarations  or  not.     Some   con- 

« Beauchamp   v.   Parry,    1   B.   &   A.  fusion    is,    however,    introduced    into 

89.     in  exception  is  there  made  as  the  case  by  Lord  Ellenborough  stat- 

to  declarations  contemporaneous  with  ing  that  evidence  of  an  act  done  was 

the    makinc    of    an    instrument,    and  admissible    against    persons   claim  ug 

the  case  of"  Kent  v.  Lowen,   1  Camp.  under     those     who     did     the     act-- 

177     was    referred    to,   where   lettera  whereas  the  admissibility  of  the  evi- 

fro.'n    tlie    payee   to   the   maker    were  dence   does  not  appear  to   depend  on 

admitted,    which    stated    an    usurious  the  privity  of  the  parties, 
consideration   for  the  note.       It  was 


536  Evidence.  [Chap.  16 

iiotwitlistanding  tlie  declarations  were  made  wliilst  the  inJorscr 
was  in  possession  of  the  note.  But  wliere  it  appears  that  the  in- 
dorsee is  merely  the  agent  to  sue  for  the  indorser,  the  declarations 
of  the  latter,  whilst  he  was  holder,  are  evidence  against  the  for- 
mer.^ 

Admissions  respecting  the  subject-matter  of  a  cause,  by  a  per- 
son who  at  the  time  of  making  them  had  the  same  interest  in  such 
matter  as  one  of  the  parties  to  the  cause,  are  admissible  in  evi- 
dence against  that  party,  though  the  person  who  made  the  admis- 
sions is  alive  and  might  be  called  as  a  witness.^"  The  same  rule 
applies  to  admissions  of  agents,  which  are  receivable  in  evidence 
against  principals,  when  part  of  the  res  gestae.  There  might 
seeiu  to  be  some  reason  for  a  distinction  between  the  rule  respect- 
ing agents,  and  that  which  relates  to  declarations  against  interest, 
inasmuch  as  in  the  latter  case  the  party  to  the  suit  is  to  be  af- 
fected by  the  declarations  of  a  person  with  whom  he  had  no  com- 
munity of  interest,  and  for  whose  assertion  he  is  not  responsible. 

Sec.  162.  Principal  and  Surety. 

It  is  a  general  rule,  founded  on  principles  of  justice  in  regard 
to  the  relation  of  principal  and  surety,  that  the  surety  ought  not 
to  be  affected  by  an  admission  made  by  his  principal,  although 
he  may  be  affected  by  declarations  or  statements  made  by  the 
principal  wlien  they  are  connected  with  the  business  in  respect 
of  which  the  surety  becomes  bound,  and  are  made  by  the  pr-in- 
cipal  at  the  time  of  transacting  that  business;^  and  this  is  the 
rule,  although  the  surety  was  not  present.^ 

•  Welstead    v.    Levy,    1    Mo.    &    R.  by  a  judgment  recovered  against  hia 

138;     Harrison  v.  Vallance,    1   Bing.  principal,  adjudging  him  to  have  been 

45.  guilty  of  fraud  and  misconduct  as  a 

^°  Woolway   v.   Rowe,    1    Ad.   &  El.  general  guardian,  the  surety  not  hav- 

114;    Brickell  v.  Hijlse,   7   Ad.  &  El.  ing  been  a  party  to  the  suit.     Clark 

454.  V.  Montgomery,  23  Barb.  464-  Doug- 

'  Bailey    v.    McAlpin     (Ga.,    1905),  lass  v.   ITovvland,   24   Wend.    (N.  Y.) 

."lO    S.    E.    3S8;    Knott    v.    Peterson,  35-58;    Coan  v.  Osgood,  15  Barb.   (N. 

(Iowa,   1904),   101   N.  W,    173;   Bon-  Y.)     583;      Snell    v.    Allen,    1    Swan 

duraiit  V.  Bank,  7  Ala.  830;   Com.  v.  (Tenn.),    208.     In   an    Alabama    case 

Kendig,   2   Ptnn.   St.   448;      Dunn   v.  it  Avas   held   that   the   principal's   ad- 

Slee,  Holt,   401.     An  admission  made  mission  is  not  admissible  against  hid 

by  a  public  officer  in  the  discharge  of  surety  unless  it  is  a  part  of  the  re8 

his  duties   is  evidence  as  against  the  gestae.       Walker   v.   Forbes,   25   Ala. 

sureties  on  his  official  bond.     Walling  139;   Blair  v.  Inslea,   10  Mo.  559. 

V.  Morgan   County,    126   Ala.   32(i.  28  'Chapel  v.  Washburn,  11  Ind.  393. 

So.  433,  437.  Nor  is  a  surety  alTccted  Thus,   where  a  person  had  become 


Sec.  163.] 


Admissions. 


53T 


Sec.  163.  Offers  of  Compromise. 

Offers  of  compromise,  or  offers  in  the  nature  of  pacification  of 
litigation,  expressly  or  impliedly  made  without  prejudice,  upon 


surety  by  a  bond  for  the  faithful  con- 
duct of  a   clerk,   it  was   held,  in   an 
action  upon  the  bond,  that  an  admis- 
sion by  the  clerk,  made  after  he  was 
discharged,    of    various    sums    which 
he  had  embezzled,  was  not  receivable 
in      evidence      against     the      surety. 
Smith  V.  Whittingham,  6  C.  &  P.  78. 
In  Cutler  v.  Newlin,  Manning's  Dig. 
N.  P.  137,  on  the  execution  of  a  writ 
of  inquiry  on  an  indemnity  bond,  an 
admission    by    the    principal    of    the 
amount  of  damnification  was  consid- 
ered by  HOLUOYD,  J.,  inadmissible.    lu 
Perchurd    v.    Hamilton,    1    Esp.    394, 
which    was    an    action    by    a    sheriff 
upon     a     bond     to     indemnify     him 
against  defaults  of  his  baililT,  a  writ- 
ten admission  by  the  bailiff  of  hav- 
ing received  levy  money  was  held  by 
Lord  Kenyon,  C.  J.,  to  be  admissible 
against    the   defendant.        It   was    so 
ruled  by  him  on  the  ground  that  the 
baililf   was  in  fact  the   defendant  m 
the  action;  but  there  seems  to  have 
been  no  evidence  to  show  that  the  de- 
fendant    was     indemnified     by      tlie 
bailiff;   and  as  the  bailiff  was  alive, 
it  would  appear  that  he  might  have 
been   called   as   a   witness.       But   in 
debt  against  a  surety  for  his  princi- 
pal's   embezzlement     the     indictment 
drawn  up  by  the  plaintiff's  attorney 
is     admissible     to     show     what     was 
claimed   to   be  embezzled.     Fireman's 
Ins.    Co.   V.   McMillan,    29    Ala.    148. 
So,  in  an  action  upon  a  guaranty  to 
pay  for  goods  sold  and  delivered  to  a 
third  person,   what   such   person   has 
admitted    respecting   the    delivery    of 
the   goods   is  not  evidence  to   charge 
the     person     giving     the     guaranty. 
Evans  v.  Seattle,  5  Esp.  26. 

Entries  made  by  a  deceased  person 
in  the  course  of  duty,  or  by  which  he 
has  charged  himself  with  the  receipt 
of  money,  being  admissible  as  against 
all  the  world,  (Gleadow  v.  Atkin,  1 
C.  &  M.  423),  are  of  course  evidence 
against  a  person  who  has  become  his 
surety  that  he  would  keep  his  ac- 
counts faithfully.     Goss  v.   Watling- 


ton,  3  B.  &  B.  132;  Whitnash  v. 
George,  8  B.  &  C.  55G;  Middleton  v. 
Melton,  10  B.  &  C,  317;  McGahey 
V.  Alston,  2  M.  &  W.  206. 

The  admissions  of  a  principal  are 
admissible  to  affect  his  own  lia- 
bility, although  his  sureties  are  par- 
ties defendant  in  the  suit,  llaekl©- 
man  v.  Moat,  4  Blackf.  (Ind. )  104. 
The  statement  of  a  constable, 
when  presenting  a  note  to  the  makei* 
for  payment,  that  the  note  was  in 
his  hands  for  collection,  is  admissible 
in  evidence  against  the  sureties  of 
the  constable,  in  an  action  to  recover 
for  a  failure  by  the  constable  to  pay 
over  the  money  collected  on  the  note. 
State  V.  Grupe,  36  Mo.  305. 

In  an  action  against  a  surety  the 
admissions  and  declarations  of  the 
principal,  who  had  deceased,  made 
against  his  interest,  at  a  time  when 
he  could  have  had  no  motive  to  mis- 
represent, and  in  relation  to  facts 
with  which  he  must  have  been  well 
acquainted,  were  held  to  be  evidence 
against  the  surety.  Hinckley  v. 
Davis,  6  N.  H.  210. 

Where  a  bond  for  performance  of 
the  duties  of  collector  of  tolls  was 
given  to  the  canal  commissioners  of 
Kew  York,  bearing  date  June  1st, 
with  a  certificate  of  the  sureties'  suf- 
ficiency indorsed  thereon,  by  a  pub- 
lic officer,  under  date  of  June  25th, 
it  was  held  that  the  admissions  of 
the  commissioners  that  they  pre- 
sumed the  bond  w^as  not  delivered  to 
them,  or  accepted  by  them,  until 
after  the  certificate  of  approval  was 
thus  indorsed,  was  not  sufficient  to 
repel  the  legal  presumption  that  the 
bond  was  delivered  and  accepted  on 
the  day  of  its  date,  when  the  admis- 
sion was  accompanied  with  the  dec- 
laration that  they  had  no  recollec- 
tion as  to  the  time  when  the  bond 
was  delivered.  Sevmour  v.  Van 
Slyck,  8  Wend.  (N.  Y.)  404.  If  the 
evidence  as  to  the  time  of  execution 
be  balanced,  the  date  will  be  held  to 
be  the  true  time.       Allen  v.  Rhode- 


538 


Evidence. 


[Cliap.  16 


the  grounds  of  public  policy,  are  not  admissible  in  evidence 
against  the  party  making  them.^  For  a  much  stronger  reason, 
evidence  of  a  settlement  with  a  third  person  injured  in  the  same 
casualty  ought  to  be  excluded.  The  court  therefore  properly  held 
that,  in  a  suit  for  the  recovery  of  damages  to  a  carriage  and 
horses,  it  was  incompetent  to  show  that  the  defendant  had  settled 
with  the  driver  for  any  claim  that  he  might  have  for  personal 
injury  received  in  the  same  collision.^  This  rule,  as  was  stated 
by  Lord  Maxsfield^  is  predicated  upon  the  ground  that  "it  must 
be  i3ermitted  to  all  men  to  buy  their  j)eace,  without  prejudice  to 
them,  should  the  offer  not  succeed,  such  offers  being  made  to  stop 
litigation,  wdthout  regard  to  the  question  whether  anything  is  due 
or  not."  If,  therefore,  the  defendant,  on  being  sued  for  a  certain 
sum,  should  offer  the  plaintiff  a  less  sum,  and  at  the  same  time 
state  that  such  offer  was  made  without  prejudice,  such  offer  is  not 
admissible  in  evidence,  for  it  is  irrelevant  to  the  issue ;  it  neither 


baugli,  Wright  (Ohio),  322.  A 
cashier  of  a  bank,  in  a  suit  against 
his  surety,  was  charged  with  having 
converted  to  his  own  use,  at  specified 
times,  and  some  time  before  certain 
declarations  offered  in  evidence  were 
made,  several  sums  of  money  belong- 
ing to  the  plaintiff.  These  facts  con- 
stituted the  breach  of  the  bond  re- 
lied on  in  the  suit  against  the 
surety,  and  were  the  facts  in  issue. 
It  was  held  that  evidence  not  tend- 
ing to  show  what  the  cashier  said  or 
did,  or  the  entries  he  made  at  the 
time  he  received  and  converted  the 
money,  was  imjDroperly  received 
against  the  surety.  Stetson  v.  City 
Bank  of  N.  0.,  2  Ohio  St.  16".  But 
in  a  suit  upon  a  bond  against  the  ex- 
tecutor  of  the  principal  and  his  sure- 
ties, evidence  is  admissible  of  the 
declarations  of  the  deceased  princi- 
pal that  he  was  in  default  on  the 
bond.  Mahaska  v.  Ingalls,  16  Iowa, 
81.  So  in  a  joint  action  against  a 
cashier  and  his  sureties  on  his  bond, 
the  admissions  and  declarations  of 
the  cashier,  as  to  his  defaults,  are 
evidence  against  the  sureties.  Am- 
herst Bank  v.  Root,  2  Met.  (Mass.) 
522.  And  in  scire  facias  against  an 
indorser  of  a  writ,  declarations  of 
the  defendant  to  an  officer  who  is 
seekiniT  to  collect  of  Lira  the  execu- 


tion issued  on  the  judgment  in  the 
original  suit,  are  competent.  Davis 
V.  Whitehead,  1  Allen  (Mass.),  276. 
But  the  admissions  of  a  principal  aa 
to  his  liability  to  a  plaintiff,  made 
after  a  breach  of  his  contract,  are 
not  competent  evidence  against  his 
surety.  Cassity  v.  Eobinson,  8  B. 
Mou.  (Ky.)  279. 

'  Kroetch  v.  Empire  Mill  Co.  ( Ida- 
ho, 1903),  74  Pac.  868;  Terry  y.  Tay- 
lor, 33  Mo.  323;  Perkins  v.  Concord 
R.  R.  Co.,  44  N.  H.  223;  State  v. 
Dutton,  11  Wis.  373;  Rideaut  v. 
Newton,  17  N.  H.  71;  Williams  v. 
Thoj-p,  8  Cow.  (N.  YJ  201.  But 
see  Grubbs,  v.  Nye.  21  Miss.  443; 
Cory  V.  Bretton,  4  C.  &  P.  462; 
Johnson  v.  Sheridan,  2  C.  &  K.  24; 
Healey  v.  Thacher,  8  C.  &-P.  388; 
Paddock  v.  Forrester,  3  Scott,  724. 
The  statement  in  a  letter  "  I  beg  to 
say  that  it  is  my  wish  to  settle  it 
with  you  on  as  reasonable  terms  as 
you  will  accept "  where  the  writer 
contends  that  he  does  not  know  any- 
thing about  the  claim  made  is  not 
an  acknowledgment  of  liability  but 
an  offer  of  compromise  and  inadmis- 
sible. Kelly  v.  Strouse,  (Ga.),  43 
S.    E.    280.  " 

'  Georgia  Ry.  &  Electric  Co.  v. 
Wallace  &  Co.,  (Ga.,  1905),  50  S.  E. 
478. 


Sec.  163.]        .  Admissions. 

admits  nor  ascertains  any  debt,  and  is  no  more  than  saying  he 
Wd  give  a  certain  sum  to  be  rid  of  the  action^     So,  in  eqmty, 
H  has  been  held  that  the  giving  of  a  small  sum  in  order  to  obtain 
L  release  of  a  right  could  not  be  considered  as  an  acknowledg- 
ment that  a  right  existed;  it  amounts  only  to  this-''I  give  you 
rmiTfor  n^t  seeking  to  disturb  me."^_    But  it  has  been  heM 
that  the  fact  that  a  defendant  compromises  a  suit  against  him 
s  evidence,  but  not  conclusive  evidence,  of  the  truth  of  the  mat- 
ters alleged  in  the  complaint.^     Perhaps,  also,  an  oifer  of  compro- 
iTse;  thi  essence  of  which  is  that  the  party_  making  it  is  wining 
to  submit  to  a  sacrifice,  or  to  make  a  concession,^  will  be  rejected, 
though  nothing  at  the  time  was  expressly  said  respecting  its  confi- 
dentfal  character,  if  it  clearly  appear  to  have  been  made  under 
the  faith  of  a  pending  treaty,  into  which  %^'f]}^l^'^^^^^^^ 
by  the  confidence  of  an  arrangement  being  effected,    although  m 
I'is  case,  if  the  admission  is  merely  of  a  collateral  or  indifferent 
fact,  such  as  the  handwriting  of  a  party,  which  is  ^^'^^^  f^^^f 
proof  by  other  means,  and  is  not  connected  with  the  snb^tantial 
merits  of  the  cause,  it  will  be  received,^  although  statements  made 
during  the  negotiations  for  compromise  are  not  admissible.  ^ 

But  evidence  of  the  admission  of  any  independent  ^f  act  is  re- 
ceivable although  made  during  a  treaty  of  compromise.  Letters 
from  the  plaintiff  to  the  defendant  in  an  action  for  personal  in- 
juries containing  statements  of  her  claim  and  the  amount  de- 
Landed,  are  admissible  as  bearing  on  the  extent  and  genuinenes 
of  her  injuries."  An  offer  of  settlement  made  by  an  employer 
to  his  employe  is  inadmissible  as  fixing  liability,  a  though  the 
conversation  may  be  relevant  to  prove  a  discharge.^  Where  a 
suit  has  been  brought  against  a  railroad  its  l«^«^Vr"''\Zd 
testify  that  he  received  from  the  general  counsel  of  he  railroad 
three  vouchers  with  which  to  make  settlement  of  the  alleged  claim 

«Tj    XT    -P    P-^fi    7,  '"Rudd   V.   Dewey,    121    Iowa,   454, 

•  B.  N.  P.  236,  6.  96  N   W   973,  975 ;  Mount  v.  Bogert, 

^Underwood   v.    Courtown,    2    Sch.       ^^J^-J-^^_   Y.),    100;      Murray    v. 

&  Lef.  b7,  bS.  Coster   4  Cow.  635;   Fuller  v.  Hamp- 

'Pym  V.  Pym,  118  Wis.  662,  96  N.       Coaster,  4  oo^  ^    ^^^^    ^^^^  ^^^^   g^^_ 

^-  *^^-  A     +        9   n    *   T^v        born  v.  Neilson,  4  N.  H.  501 ;  Delog- 

0  Thomson    v.   Austen,   2   D.   &   By.       ^^™  Vntoul,   1  Martin    (La.),   175. 

361.  .^  _       .  1     T7„n  "Snow  V    New  York,  N.  H.  &  H. 

^Waldridge    v.    Kennison,    1    Esp.       ^     bnow^v.  ^^^^    ^^^,  ^^  ^    ^    ^ 

144.  205       ' 

*Id.                                    r^   o     r-    OR  i=Hio£rins   v.    Shepliard,    182   Mass. 

^Bobertson   v.   Blair,   56   S.   C.   96,  Higgms   v.    o     y 

34  S.  E.  11,  76  Am.  St.  Bep.  543.  364,  65  N.  E.-B.  805. 


540 


Evidence. 


[Chap.  16 


and  that  lie  offered  a  sum  in  settlement  of  the  suit  which  aggre- 
gated the  three  vouchers.  It  is  not  apparent  that  this  payment 
"was  made  as  a  concession  or  sacrifice  in  an  effort  to  buy  peace.^^ 
There  is  a  distinction  between  an  offer  or  proposition  to  com- 
promise a  doubtful  or  disputed  claim  and  an  offer  to  settle  upon 
certain  terms  a  claim  that  is  unquestioned.  An  admission  made 
in  an  offer  of  the  latter  character  will  be  admissible  when  one 
made  in  an  offer  of  the  former  character  will  not.^* 


*«  Chesapeake  &  0,  R.  E.  Co.  v.  F. 
W.  Stock  &  Sons  (Va.,  1905),  51  S. 
E.  161. 

"  So  where  the  plaintiff  had  de- 
manded a  settlement  of  the  defend- 
ant and  the  defendant  offered  to  set- 
tle in  land  and  securities  which  of- 
fer appeared  to  accede  to  the  plain- 
tiff's demand  on  certain  terms  the 
offer  was  held  admissible  as  not 
made  with  a  view  to  compromise. 
Teasley  v.  Bradley,  110  Ga.  497,  35 
S.  E.  782,  78  Am.  St.  Rep.  113. 

In  England  it  is  held  that,  in  the 
absence  of  any  express  or  strongly 
implied  restriction  as  to  confidence, 
an  offer  of  compromise  is  admissible 
as  some  evidence  of  liability,  Wal- 
lace V.  Small,  M.  &  M.  464;  Watts 
V.  LawEon,  id.  447,  n.;  Nicholson  v. 
Smith,  3  Stark.  129,  and  although 
the  offer  of  a  less  sum  than  the 
amount  demanded  will  not,  in  gen- 
eral, support  a  count  on  an  account 
stated,  inasmuch  as  it  may  be  a  mere 
offer  to  purchase  peace,  Wayman  v. 
Hilliard,  7  Bing.  101;  nor,  perhaps, 
will  an  offer  by  the  drawer  of  a  bill, 
who  is  threatened  with  legal  pro- 
ceedings upon  it,  to  give  another 
bill  by  Avay  of  settlement,  obviate  the 
necessity  of  proving  at  the  trial  that 
he  has  received  due  notice  of  dis- 
honor, Cuming  v.  French,  2  Camp. 
106,  note;  yet  there  are  occasions, 
as  where  drawer  of  a  bill,  whose  sig- 
nature is  in  issue,  has  proposed  a 
settlement,  when  the  fact  of  an  offer 
having  been  made  may  be  entitled  to 
considerable  weight.  Harding  v. 
Jones,  Tyr.  &  Gr.  135.  In  one  case, 
Thomas  v.  Morgan,  2  C,  M.  &  R. 
496,  where  the  defendant  was  sued 
for  keeping  mischievous  dogs,  which 
had    killed    three    of    the    plaintiff's 


cattle,  and  it  appeared  that  on  being 
told  of  the  injury  done  by  them  he 
had  offered  to  settle  for  it,  the  court 
held  that  although  this  was  a  fact 
which  in  strictness  should  have  been 
submitted  to  the  jury  as  evidence  of 
the  scienter,  it  was  entitled  to  little, 
if  any,  weight,  "  as  it  might  have 
been  made  from  motives  of  charity 
without  any  admission  of  liability  at 
all."  They  therefore  refused  a  new 
trial,  although  the  question,  whether 
the  offer  of  compromise  was  not  an 
admission  of  the  defendant's  liability 
had  not  in  point  of  fact  been  left  to 
the  jury,  the  attention  of  the  judge 
not  having  been  drawn  to  that  par- 
ticular point.  Admissions  made  be- 
fore an  arbitrator  are  receivable  :n 
a  subsequent  trial  of  the  cause,  the 
reference  having  proved  ineffectual. 
Gregory  v.  Howard,  3  Esp.  113; 
Slack  v.  Buchannan,  Peake,  5. 

In  a  Maine  case,  Rawell  v.  Mont- 
ville,  4  Me.  270,  where  a  town  had 
voted  upon  two  separate  occasions  to 
pay  a  person  who  made  a  claim 
against  it  for  a  personal  injury  re- 
ceived from  an  insufficient  road, 
which  sum  was  not  accepted,  it  was 
held  that  these  votes  were  not  re- 
ceivable as  an  admission  of  its  lia- 
bility by  the  town,  being  mere  offers 
of  compromise.  But  in  a  Massa- 
chusetts case,  Harrington  v.  Lincoln. 
4  Gray  (Mass.),  563,  where  the  se- 
lectmen of  a  town,  in  the  course  of  a 
conversation  had  with  a  person 
claiming  damages  for  an  injury  oc- 
casioned by  a  defect  in  a  highway, 
with  a  view  to  a  compromise,  offered 
to  pay  for  his  loss  of  time  and  ac- 
tual expenses,  and  asked  him  what 
they  would  amount  to,  it  was  held 
that  his   statements  in   reply,  of  the 


Sec.  16i.]  Admissions.  541 

Sec.  164.  How  Admissions  should  be  Weighed. 

An  important  element  in  determining  the  force  to  be  given  to 
admissions  is  the  circumstances  under  which  they  were  made. 
If  they  were  under  constraint  or  illegal  duress,  they  are  not 
admissible;^  and  the  same  is  also  true  if  they  were  made  by  a 
person  under  a  misapprehension  of  his  legal  rights/  especially 
where  such  misapprehension  was  induced  by  the  other  party. 
But  admissions  made  under  legal  constraint  are  competent  evi- 
dence in  some  cases,  as,  affidavits  sworn  to  in  a  former  suit,^  and 
this  is  tbe  rule,  although  the  facts  sworn  to  were  irrelevant,*  or 
although  the  party  was  not  bound  to  disclose  them,^  and  although 
he  had  no  opportunity  of  fully  explaining  what  he  meant.^  In 
tbe  case  last  cited,  in  an  action  for  taking  the  plaintiff's  ship,  the 
testimony  of  the  defendant,  given  as  a  witness  in  an  action  be- 
tween other  parties,  in  whicb  he  admitted  the  taking  of  the  ship, 
was  allowed  to  be  proved  against  him ;  although  it  appeared  that, 
in  giving  his  evidence,  when  he  was  proceeding  to  state  his  rea- 
sons for  taking  the  ship,  the  judge  stopped  him  by  saying  that  it 
was  unnecessary  for  him  to  vindicate  his  conduct.  The  manner 
in  which  the  evidence  was  obtained  was  matter  of  observation  to 
the  jury ;  but  as  what  was  said  bore  directly  on  the  issue,  it  could 
not  be  excluded  as  evidence  of  tbe  fact.  So,  where  a  defendant 
bad  been  examined  before  commissioners  of  bankruj)ts,  although 
the  whole  of  what  was  said  had  not  been  taken  down,  yet  tbe  por- 
tion that  was  reduced  to  writing  having  been  read  over  to  him, 
and  be  baving  signed  it,  it  was  held  to  be  receivable  against  him, 
as  a  statement  of  facts,  the  truth  of  which  he  had  admitted/  It 
seems  that  an  admission  obtained  under  a  compulsory  examination 

amount  of  those  items,  if  not  made  share   of  the  insurance  on   the  basis 

as  offers  upon  which  he  was  ^vUling  of  an  adjustment  of  general  average, 

to  settle,  were  admissible  in  evidence  which    included    the    advances    made 

against  him.  by  the  plaintiff,  was  held  to  amount 

In   Mississippi   it   is   held   that   of-  to    an    admission    of   the    defendant's 

fers  of  compromise  relating  to  notes  liability  for  such  advances, 

may  be  given   in  evidence  as   an  ad-  '  Stockfeth  v.   De   Tastet,   4   Camp, 

mission  of  the  execution  of  the  notes.  11;  Eobson  v.  Alexander,  1  M.  &  P. 

Grubbs  v.   Nye,   21    Miss,   443.     See,  448. 

also,    LobacJi   v.    Hotchkiss,    17    Abb.  'Moore  v.  Hitchcock,  4  Wend.    (N. 

(N.  Y.)    Pr.  88,  where,  in  an   action  Y.)    292. 

against   a    shipowner   to   recover    the  *  Ashniore  v.  Hardy,  7  C.  &  P.  501. 

amount  of  advances  made  to  compro-  'Stockfeth  v.  De  Tastet,  ante. 

raise  a  demand  for  salvage,  evidence  °  Smith  v.  Bendall,  1   Camp.  30. 

that   the    defendant   claimed    and    re-  •  Callet  v.  Keith.  4  Esp.  212. 
ceived     from     the     underwriters     hh  '        '' Milward  v.  Forbes,  4  Esp.  171. 


642  Evidence.  [Chap.  16 

will  not  be  evidence  of  an  account  stated;  but  this  probably  rests 
on  the  ground  that  it  is  made  to  a  third  party,  while,  to  support 
an  account  stated,  the  admission  must  be  made  either  to  the  per- 
son to  whom  the  money  is  owing,  or  to  some  one  sent  by  him.^ 

There  is  no  difference,  so  far  as  the  admissibility  of  this  kind 
of  evidence  is  concerned,  between  direct  admissions,  and  those 
which  are  incidental,  or  made  in  some  other  connection,  or  in- 
volved in  the  admission  of  some  other  fact.  Thus,  in  an  action 
by  the  assignees  of  a  bankrupt  against  an  auctioneer  to  recover 
the  proceeds  of  a  sale  of  the  bankrupt's  goods,  the  defendant's 
advertisement  of  the  sale,  in  which  he  described  the  goods  as  "the 
property  of  D.,  a  bankrupt,"  was  held  to  be  a>  conclusive  admis- 
sion that  D.  was  a  bankrupt,  and  that  the  defendant  was  acting 
under  his  assignees.®  So  where  a  party,  with  a  view  to  suing  out 
a  commission  of  bankruptcy  against  a  trader,  made  an  affidavit 
that  the  trader  owed  him  a  certain  specific  sum,  and  was  become 
bankrupt,  it  was  held  that  he  could  not  afterwards  dispute  the 
bankruptcy  when  he  was  himself  sued  in  trover  by  the  assignees 
of  the  bankrupt,  appointed  under  a  second  commission,  for  the 
price  of  flour  which  he  had  clandestinely  received  from  the  trader, 
and  applied  to  the  discharge  of  his  own  debt.^" 

Sec.  165.  Admissions  implied  from  Conduct. 

The  conduct  of  a  party  may  be  such  of  itself,  unaccompanied 
by  any  words  or  declaration,  as  to  amount  to  an  admission  of  cer- 
tain facts.  So  admissions  may  be  implied  from  assumed  cliar- 
acter;  for,  whenever  the  existence  of  any  domestic,  social,  or  offi- 
cial relation  is  in  issue,  any  recognition  of  that  relation,  whether 
by  word  or  deed,  is  prima  facie  evidence,  against  the  person  mak- 
ing such  recognition,  that  the  relation  exists.^  This  general  rule, 
although  most  frequently  applied  against  a  person  who  has  recog- 
nized the  character  or  office  of  another,  also  embraces,  in  its  prin- 
ciple, any  representations  or  language  in  regard  to  himself. 
Thus,  where  a  person  has  assumed  to  act  in  an  official  character, 
this  is  an  admission  of  his  appointment  or  title  to  the  office,  so 

•Tucker  v.  Barrow,  3  C.  &  P„  90.   ""  Harmar  v.  Davis,  7  Taunt.  577. 

•Maltby   v.    Christie,    1    Esp.   342;  'Dickinson   v.   Coward,    1    B.   ;i,  A. 

Rankin    v.    Horner,     16     East,     193;  677,  679;  Inglis  v.  Spence,  1  C.  M.  & 

Taylor  on  Ev.   533.  R.  436, 

'"Ledbetter   v.    Salt,    4    Bing.    623; 


Sec.  165.] 


Admissions. 


543 


far  as  to  render  liim  liable,  even  criminally,  for  misconduct  or 

neglect  in  such  office.^  •     ,  .7.      ^ 

The  same  rule  prevails  where  a  person  has  recognized  the  op- 
cial  character  of  another,  by  dealing  with  him  in  such  character 
or  otherwise ;  at  least  such  conduct  is  prima  facie  evidence  of  his 
title  against  the  party  thus  recognizing  it.^  Admissions  implied 
from  the  conduct  of  a  party  are  governed  by  the  same  principles. 
Thus,  the  suppression  of  documents  is  an  admission  that  their 


^Bevan  v.  Williams,  3  T.  R.  635  a; 
R.   V.   Gardner,  2   Camp.   513;    R.   v. 
Kerne,   7   How.   St.   Tr.   714;      R.  v. 
Brommick,    id.    722;      R.   v.    Atkins, 
id.    738;      R.   V.   Borrett,   6   C.   &   P. 
124;      Cross   v.   Kaye,   6   T.   R.   663; 
Trowbridge  v.  Baker,  1  Cow.  (N.  Y.) 
251;  Lister   v.    Priestly-Wightw.    67. 
3  Peacock  V.  Harris,  10  East,  104. 
Tlius,  where  a  person  had  received 
credit   from    the    renter    of    turnpike 
tolls,   and  had   afterwards   accounted 
with    him    in     that    character,    and 
made  him  a  partial  payment,  he  was 
not    permitted    to    question    the    le- 
gality     of     his     appointment;      and 
where  a  farmer-general  of  post-horse 
duties  brought  an  action  for  certain 
statute    penalties    against    a    person 
Avho  let  out  horses  for  hire,  proof  of 
his  appointment  was  waived,  the  de- 
fendant having  previously  accounted 
with   him   as   farmer-general.       Rad- 
ford V.  M'Intosh,  3  T.   R.   632.     So, 
the  clerk  of  the  trustees  of  a  turn- 
pike  road  was  not   allowed   to  show 
that  a  person  who  had  acted  as  one 
•    of  the  trustees,  and  had  been  treated 
as  such  by  himself,  while  clerk,  was 
not      duly     qualified,      Prichard     x. 
Walker,  '3    C.  &   P.   212;   and  in   an 
action  by  the  assignees  of  a  bankrupt 
against  a  debtor,  who  has  made  them 
a°  partial     payment,     (Dickinson    v. 
Coward,  1  B.  &  A.  677),  or  has  ac- 
knowledged  their   title   in   letters   to 
the  solicitor  of  the  commission,    (In- 
glis  V.   Spence,   1   C.  M.  &   R.   432; 
Crofton  V.  Poole,  1  B.  &  Ad.  568),  the 
plaintiffs  need   not  prove  their  title 
as    assignees,    though    notice    to    dis- 
pute  has  been   given.     So.   where   an 
attorney  brought  an  action  against  a 
defendant   for  defamation,    in   charg- 
in^^  him  with   swindling,  and  tlireat- 
entng    to    have    him    struck    off    the 


rolls,  this  threat  was  held  to  impart 
an  admission   that  the  plaintiff  was 
an  attorney,  Berryman  v.  Wise,  4  T. 
R.     366;   and    in     a    similar     action 
brought   by   a    physician,    where    the 
plaintiff   was   spoken   of    as   "  Doctor 
L.,"  and  the  defendant,  who  was  an 
apothecary,   had   made   up  medicines 
prescribed    by    him,    the    court    was 
equally    divided    upon    the    question, 
whether    the    defendant's    words    and 
conduct  amounted  to  an  acknowledg- 
ment of  the  plaintiff's  character.    In 
actions  of  this  kind,  however,  if  the 
loords   complained   of  charge  a  u-ant 
of  qualification  and  not  mere  miscon- 
duct,  the   plaintiff   must   prove   that 
he  possesses  the  character  which  has 
been    impugned,    for    the    slander    in 
such  case  does  not  admit  it.     Smith 
v.  Taylor,    1   Scott,   196;     Collins  v. 
Carnegie,  1  Ad.  &  El.  703.  This  rule, 
or   rather   exception    to   the    rule,   is 
well  illustrated  by  an  English  case. 
Lipscombe  v.  Holmes,  2  Camp.  441; 
R,  V.  Barnes,  1   Stark.  243;   Cummin 
V.    Smith,   2    S.   &   R.    (Penn.)    440; 
Divoll  V.  Leadbetter,  4  Pick.  (Mass.) 
220.       In   that   case,  an  action  was 
brought  for  work  and  labor  as  a  sur- 
geon;  and  the   defense  was  that  th^ 
plaintiff  wa&  a  physician,  and  there- 
fore incapable  of  maintaining  an  ac- 
tion for  fees.     It  was  shown  that  he 
had  written  prescriptions  and  signed 
himself  M.  D.,  upon  which  Lord  Ei> 
LENBOROUGH  was  ou  the  point  of  non- 
suiting  him,   saying  that  "  if   a   per- 
son passes  himself  off  as  a  physician, 
he    must    take     the     character     cum 
onere.      It    appearing,    however,    that 
the   defendant   had   paid   money   into 
court,  his  Lordship  thought  that  this 
act  removed  the  objection,  being  tan- 
tamount    to     an    admission    of     the 
plaintiff's  right  to  sue  as  a  surgeon. 


544  Evidence.  [Chap.  16 

contents  were  deemed  unfavorable  to  the  party  suppressing  them/ 
and  where  the  deceased  admits  that  he  shot  himself  and  refuses 
to  explain  how  or  why  he  did  it  this  is  convincing  proof  that  there 
was  no  explanation  to  make  and  tliat  the  act  was  suicidal.^  The 
entry  of  a  charge  to  a  particular  person  in  an  account  book,  or 
the  making  out  of  a  bill  in  his  name,  is  an  admission  that  the 
goods  were  furnished  on  his  credit.^  The  omission  of  a  claim  by  an 
insolvent  in  a  schedule  of  the  debts  due  to  him,  given  in  on  oath,  is 
an  admission  that  it  is  not  due;  though  whether  it  amounts  to  a 
conclusive  a(3mission  may  be  a  question  of  some  doubt.''  Payment 
of  money  is  an  admission  that  the  person  to  whom  it  was  paid  is 
the  proper  person  to  receive  it,  but  not  against  the  receiver  that 
the  payer  was  the  person  who  was  bound  to  pay  it ;  for  the  party 
receiving  payment  of  a  just  demand  may  well  assume  without  in- 
quiry that  the  person  tendering  the  money  was  the  person  legally 
.  bound  to  pay  it.^  Relief  given  at  various  times  to  a  pauper  while 
residing  in  another  parish  is  cogent,  though  not  conclusive,  evi- 
dence that  he  is  settled  in  the  relieving  parish  f  and  even  a  single 
instance  of  such  relief  having  been  given  will  warrant  a  similar 
conclusion. ^°  A  distinct  promise  by  the  drawer  to  pay,  or  indeed 
any  acknowledgment  by  him  of  liability  upon,  a  dishonored  bill, 

*  James     v.     Bion,     and     Owen     v.  dence  will    be   much   stronger  if  the 

Flack,  2  S.  &  S.  60G,  607;     Bell   v.  examination    states    a    distinct    head 

Frankis,   4   M.   &   G.   446;      Cuilewis  of  settlement  in  the  relieving  parish, 

V.  Corfield,  1  Q.  B.  814.  though  the  technical   pioof  may   fail 

'Sutcliffe  V.  Iowa  Traveling  Mens'  to   establish   it   satisfactorily.     R.    v. 

Association,  119  Iowa,  220,  93  N.  W.  Bedingham,  1  Sess.  Cas.  114.  On  the 

90-  other    hand,    it    has    been    held    that 

'Storr   V.    Scott,   6    C.    &   P.    241;  the  relief  ol  a  pauper,  while  residing 

Thompson   v.    Davenport,   9    B.    &   C.  in  the  relieving  parish,  is  no  evidence 

78.  whatever  of  a  settlement,  however  fre- 

''In  Nicholls  v.  Downes,  1  M.  &  R.  quently  it  may  have  been  bestowed,  R 

13,    Lord    Tentekden    held    it   to   be  v.  Chatham,  8  East,  498 ;    R.  v.  Tr'ow- 

conclusive,      apparently      questioning  bridge,  7  B.  &  C  252  :  R.  v.  Coieorton,  1 

Hart  T.  Newman,  3  Camp.   13,  where  B.  &A  25;   but  this  rule  rests,  not  so 

Lord  Ellenborough  treated  it  as  en-  much  on  the  absence  of  any  presump- 

titled   to    little   weight.        See   Tilgh-  tion    dedueible    from    the    "conduct   of 

man  v.  Fisher,  9  Watts   (Penn.),  441.  the   relieving   parish,    as   on   the   im- 

"  James    v.    Bion,    2    S.  &    S.    606;  policy    of    permitting    such    evidence 

Chapman  v.  Beard,  3  Anstr.  942.  to    have    any    weight;  for    if    parish 

°R.  v.  Barnsley,   1  M.  &  Sel.  377;  officers,    by   giving    relief    to    a    pau- 

R.  V.   Wakefield,   5   East,   335;   R.   v.  per,   were   to   make   evidence   against 

Stanley,    15    East,   350;      R.  v.   East,  themselves    as    to    his    settlement    in 

Winch..   12   A.  &   E.   697;   R.   v.  Yar-  their     parish,     they     would     perform 

well,   0   B.   &   C.   894:   R.   v.   Carnar-  their  duty  to  casual  poor  with  "jreat 

vonshire  Js.,  2  Q.  B.  325.  reluctance.     R.   v.    Chatham,   8    East, 

'"R.  V.  Edwinstowe,  8  B.  &  C.  671.  501;   E.  v.  Coieorton,  1   B.  &  Ad.  27. 

Of   course    the   efl'ect   of   such    evi- 


Sec.  166.]  Admissions.  545 

will  raise  an  inference  that  he  has  received  due  notice  of  dis- 
honor, and,  in  the  case  of  a  foreign  bill,  that  it  has  been  duly  pro- 
tested ;^^  and  a  jury  will  be  justified  in  coming  to  the  same  con- 
clusion on  less  positive  evidence;  as,  for  instance,  if  the  drawer, 
in  disclaiming  liability,  when  threatened  with  an  action,  did  not 
rest  his  defense  on  the  want  of  notice,  but  on  some  different 
ground.^  The  maxim,  expressum  facit  cessare  taciturn,  will  here 
raise  a  presumption  which  a  defendant  may  find  it  difficult  to  ren 
but.  Suing^^  or  distraining^*  for  rent,  accruing  due  after  a  for- 
feiture of  which  the  lessor  has  notice,  as  also  the  mere  acceptance 
of  such  rent,  amounts  to  an  acknowledgment  of  the  tenancy  on 
the  part  of  the  lessor,  and  is  consequently  a  waiver  of  the  for- 
feiture;^^ although  the  breach  is  a  continuing  one,  as  the  using! 
of  rooms  in  a  prohibited  manner,  or  the  omitting  to  keep  premises 
insured,  the  acceptance  of  rent  after  such  breach  does  not  amo[un(ti 
to  a  waiver  of  the  forfeiture  incurred  by  subsequent  user  or  omia- 
fiion.^^ 

Sec.  1 66.  Admissions  from  Acquiescence. 

Admissions  may  be  implied  from  the  acquiescence  of  the  party. 
But  acquiescence,  to  have  the  effect  of  an  admission,  must  exhibit 
some  act  of  the  mind,  and  amount  to  voluntary  demeanor  or  con- 
duct of  the  party ^  and  it  must  appear  that  the  fact  claimed  to  he 
admitted  was  then  material  to  the  interests  of  the  party  who  kept 
silent.^  And  whether  it  is  acquiescence  in  the  conduct  or  in  the 
language  of  others,  it  mu^t  plainly  appear  that  such  conduct  was 
fully  known,  or  such  language  fully  understood,  hy  the  party,  be- 
fore any  inference  can  be  drawn  from  his  passiveness  or  silence. 
So  the  circumstances  must  have  been  su^h  as  not  only  afforded, 

"Hicks    V.    Duke    of    Beaufort,    4  len,   3   Taunt.    78;      Doe   v.   Rees,   4 

Bing.    N.    C.    229,   232;  Campbell    v.  Bing.  N,  C.  384. 

Webster,  2   C.  B.  258;    Patterson  v.  '» Doe    v.    Woodbridge,    9    B.   &   C. 

Becher,   6    B.   Moore,   319;    Brownell  376;     Doe  v.  Peck,  1  B.  &  Ad.  428; 

V.  Bonney,   1  Q.  B.   39.     See  Bell  v.  Hyde  v.  Watts,  12  M.  &  W.  254;  Doe 

Frankis,  4  M.  &  G.  446.  v.  Gladwin,  6  Q.  B.  963. 

"Wilkins   v.   Jadis.    1    M.    &  Rob.  'Allen  v.  McKeen,  1  Sum.   (U.  S.) 

41;  Curlewis  v.  Corfield,  1  Q.  B.  814.  3X4;  People  v.  McCrea,  32  Cal.  98; 

"Roe  V.  Minshall,  cited  B.  N.   P.  Black  v.   Hicks,   27   Ga.  522;   Corset 

96  c.  V.    Paul,   41    N.   n,   24;  Hagenbaugh 

"  Doe  V.  Peck,  1  B.  &  Ad.  428.  v.  Crabtree,  33  111.  225. 

"  Doe  V.  Davids,  2  Cowp.  804 ;  Roe  '  Thayer  v.  Usher,  98  Me.  468,  57 

V.  Harrison,  2  T.  R.  430;  Doe  v.  Al-  A.  839. 

35 


546  Evidence.  [Chap.  16 

liini  an  opportunity  to  act  or  to  speak j  hut  such  also  as  would 
properly  and  naturally  call  for  some  action  or  reply  from  men 
similarly  situated.^  Thus,  where  a  landlord  quietly  suffers  a 
tenant  to  expend  money  in  making  alterations  and  improvements 
on  the  premises,  it  is  evidence  of  his  consent  to  the  alterations  ;■* 
but  merely  lying  by  and  passively  witnessing  a  breach  of  cove- 
nant for  several  years  is  not  such  an  acquiescence  as  amounts  to 
a  waiver  of  the  forfeiture,^  If  a  tenant  personally  receives  notice 
to  quit  at  a  particular  day,  without  objection,  it  is  generally  an 
admission  that  his  tenancy  expires  on  that  day  f  but  if  he  cannot 
read,  or  even  did  not  read  the  notice  in  the  presence  of  the  person 
serving  it  upon  him,  it  will  be  treated  as  a  notice  not  personally 
served,^  and  will  go  for  nothing.^  It  has  been  held  that  a  trader, 
being  inquired  for  and  hearing  himself  denied,  may  thereby  com- 
mit an  act  of  bankruptcy;®  and  generally,  where  one  knowingly 
avails  himself  of  another's  acts  done  for  his  benefit,  the  jury  Avill 
be  justified  in  considering  such  conduct  as  an  admission  of  his 
obligation  to  pay  a  reasonable  compensation. ^"^ 

Raising  an  objection  to  one  item  of  an  account,  no  remark  be- 
ing made  as  to  the  rest,  is  evidence  of  an  account  stated  as  to  those 
items,  to  which  no  objection  has  been  made;^^  and,  among  mer- 
chants^ an  account  rendered  will  be  regarded  as  allowed,  if  it  is 
not  objected  to  within  a  reasonable  time,^'  or  at  least  if  it  is  kept 
for  any  length  of  time  without  making  an  objection."     With  re- 

■Brainard    v.    Buck,    25    Vt.    573;  where    a    candidate,    not    bound    by 

Hersey  v.  Burton,  23  Vt.   685;  Law-  statute     to     pay     for     the     hustings 

son  V.  State,  20  Ala.  65;  Wilkins  v.  erected    for    an    election,    had    made 

Stidger,  22  Cal.  231;  Ralfe  v.  Ralfe,  use    of   them;     Abbot   v.    Hermon,   7 

10    Ga.    143;  Melen   v.    Andrews,   M.  Me.    118,    where    a   school-house   was 

&  M.  33G;  Boyd  v.  Bolton,  8  Ir.  Eq.  used  by  the  school   district;  Hayden 

113.  V.  Madison,  7  id.  76. 

*Doe    V.    Allen.   3    Taunt.    78,    80;  ^  Chisman  v.  Count,  2  M.  &  G.  307, 

Doe  V.   Pye,   1   Esp.   366 ;      Neale  v.  "  Sherman    v,    Sherman,    2    VeTn. 

Parkin,     1     Esp.    229;      Stanley     v.  276, 

White,  14  East,  332.  '^  Freeland  v.  Heron,  7  Cranch   (U. 

"Doe  V.  Allen.  3  Taunt.  78.  S.),    147,    151;    Murray  v.   Toland,   3 

«Doe     V.     Biggs,     2     Taunt.    109;  Johns.    Cas.     (N.    Y.)     575;    Coe    v. 

Thomas    v.    Tliomas,    2    Camp.    047;  Button,    1    S.    &    R.     (Penn.)     398; 

Doe  V.  Forster,  13  East,  405;     Oak-  M'Bride  v.  Watts,  1  M'Cord   (S.  C), 

apple  V.  Copous,  4  T.  R.  361;     Doe  384;      Corps    v.    Robinson,    2    Wash. 

V.  Wombwell,  2  Camp.  559,  (U,  S.)    C.  C,   388;  Willis  v.  Jerae- 

^  Doe  V,  Calvert,  2  Camn,  388,  gan,    2    Atk,    252,    per    Lord    Haed- 

» Thomas  v.  Thomas.  2  Can:p.  649;  wicke;   Tickel  v.  Short,   2   Ves.   Sen. 

Doe  V.  Forster,   13  East,  405.  239,   per  id.,  where   the  account  had 

'-'  Key  V.  Shaw,  8  Bing.  320.  been  kept  without  objection  for  two 

>»  Morris  v.  Burdett,  1  Camp.  218,  years. 


Sec  166.]  Admissions.  547 

spect  to  ordinary  accounts,  however,  a  distinction  has  been  made 
between  such  as  are  sent  by  post,  and  those  delivered  hy  hand; 
and  it  has  been  held  that  the  former,  though  kept  by,  the  party 
to  whom  they  were  sent  without  observation,  are  not  admissible 
against  him,  as  evidence  that  he  had  acquiesced  m  their  contents. 
In  the  case  last  cited,  Bush,  C.  J.,  said  that  what  a  party  sa^s 
upon  an  account  furnished  to  him,  or  upon  a  statement  made  m 
his  presence,  may  be  given  in  evidence  against  him  along  with 
the  account  or  statement,  because  what  is  thus  offered  is  the  act 
or  declaration  of  the  party  to  be  affected  by  it,  and  the  account  or 
the  statement  is  by  reference  made  a  part  of  such  act  or  declara- 
tion; but  the  naked  fact  that  an  account  remams  m  the  posses- 
sion of  a  party  to  whom  it  was  sent,  cannot  amount  to  an  acqui- 
escence in  its  contents.     The  admission  of  such  evidence  would 
countenance  the  notion  that  a  man  might,  by  furnishing  an  ac- 
count claiming  a  balance  against  his  creditor,  establish  an  acquit- 
tance for  himself. 

The  authorities  make  a  distinction  between  statements  made 
orally  and  those  contained  in  letters  which  are  unanswered  or  not 
acted  upon.  In  the  former  case  the  party  to  whom  statements 
hostile  to  his  interest  are  made  may  with  much  reason  be  required 
to  contradict  or  be  held  to  acquiesce  in  their  truth.  In  the  latter 
case  he  is  not  called  upon  to  go  to  the  trouble  and  expense  of  writ- 
ing a  denial  and  silence  cannot  be  construed  into  acquiescence  in 
the  truth  of  the  written  statements.^^ 

Letters,  however,  or  other  papers  found  in  a  party's  possession, 
will  occasionally  in  a  civil  suit  be  evidence  against  him,  as  raising 
an  inference  that  he  knows  their  contents  and  has  acted  upon 
them;^^  and  in  criminal  prosecutions,  especially  those  for  con- 
spiracy and  treason,  letters  and  papers  so  found  are  frequently 
received,  though  their  weight,  as  evidence  against  the  prisoner, 
will  in  great  measure  depend  on  the  fact,  whether  answers  to 
them  can  be  traced,  or  whether  anything  can  be  shown  to  have 
been  done  upon  them." 

"  Price    V.    Ramsay,    2    Jebb    &    S.       disputing   the   claim    cannot   be    cori- 


338. 


strued    as    an   admission.        Irwin 


"State  Bank  of  St.  Johns  v.  Me-  Buffalo  Pitts  Co.    (Wash.,   1905),  81 

Cabe,    135   Mich.   479,   98   N.   W.   20;  Pac.   849. 

Fairlie   v.    Denton,    3    C.   &   P.    103 ;  ''  Hewitt  v.  Piggott,  5  C.  &  P.  75. 

Doe  V   Frankis,  11  A.  &  E.  795.     The  "  R.  v.  Home  Tooke,  25  How.  St. 

failure  of  an  attorney  for  a  creditor  Tr.  120,  121;  R.  v.  Watson,  2  Stark, 

to  answer   a  letter   from  the  debtor  140. 


548  Evidence.  [Ciiap.  16 

So,  also,  the  opportunity  of  constant  access  to  documents  may 
sometimes,  bj  raising  a  presumption  that  their  contents  are 
known,  afford  ground  for  affecting  parties  with  an  implied  ad- 
mission of  the  truth  or  correctness  of  such  contents.  Thus,  one 
partner  may  be  bound  by  the  partnership  books  charging  him 
with  withdrawals  where  he  might  have  examined  them  but  did 
not.^^  So,  the  rules  of  a  club,  or  a  record  of  the  proceedings  of  a 
society,  contained  in  a  book  kept  by  the  proper  officer  and  ac- 
cessible to  the  members  ;^^  charges  against  a  club,  entered  by  the 
servants  of  the  house  in  a  book  kept  for  that  purpose  open  in  the 
club-room,^°  and  the  like,  are  admissible  against  the  members; 
their  knowledge  of  the  contents  of  the  books  and  their  acquies- 
cence therein  being  presumable  under  the  circumstances. 

As  to  admissions  inferred  from  acquiescence  in  the  verbal  state- 
inents  of  others,  the  maxim,  qui  tacet,  consentire  videtur,  is  to  be 
applied  with  careful  discrimination.  "jSTothing,"  said  Duncan^ 
J.,  "can  be  more  dangerous  that  this  kind  of  evidence.  It  should 
always  be  received  with  caution,  and  never  ought  to  be  received 
at  all,  unless  the  evidence  is  of  direct  declarations  of  that  kind, 
which  naturally  calls  for  contradiction;  some  assertion  made  to 
the  party  with  respect  to  his  right,  which  by  his  silence  he  ac- 
quiesces in."^^  A  distinction  is  made  between  declarations  made 
by  a  party  interested,  and  those  made  by  a  stranger;  and  while 
what  one  party  declares  to  the  other  without  contradiction  is  ad- 
missible, what  is  said  to  a  party  by  a  third  person  may  not  be  so. 
It  may  be  impertinent,  and  best  rebuked  by  silence.^^  And  the 
same  is  true  as  to  statements  made  by  strangers  in  the  presence 
of  a  party,  and  they  will  not  be  admissible  against  him  if  they 
are  iiot  directly  addressed  to  him ;  because,  in  such  case,  he  can- 
not generally  be  called  upon  to  interfere.  Therefore,  where,  in 
a  real  action,  upon  a  view  of  the  premises  by  a  jury,  one  of  the 
chain-bearers  was  the  owner  of  a  neighboring  lot,  respecting  the 
bounds  of  which  the  litigating  parties  had  much  altercation,  their 
declarations  in  his  presence  were  held  inadmissible  against  him, 
in  a  subsequent  action  respecting  his  own  lot.^^ 

"Safe    Deposit   Co.    v.    Turner,    98  =' Moore     v.     Smith,    14    S.    &    R. 

Md.  22,  55  A.  1023,   1027.  (Penn.)    393. 

"  Raggett  V.  Musgrave,  2  C.  &  P.  "  Child  v.  Grace,  2  C.  &  P.  193. 

556;   Alderson  v.  Clay,   1  Stark.  405.  "Moore     v.     Smith,    14    S.    &    R. 

'•Wiltzie   V.    Adamson,    1    Ph.    Ev.  (Penn.)    388. 
357. 


Sec.  166.]  Admissions.  540 

To  affect  a  person  with  the  statements  of  others,  on  the  ground 
of  his  implied  admission  of  their  truth  by  silent  acquiescence,  it 
is  not  enough  that  they  were  made  in  his  presence,  or  even  to  him- 
self, by  parties  interested,  hut  they  must  also  have  been  made  on 
an  occasion  when  a  reply  from,  him  might  be  properly  expected.^* 

Acquiescence  cannot  be  inferred  from  failure  of  one  to  contra- 
dict a  statement  made  on  the  stand  in  a  suit  to  which  he  was  not 
a  party,^^  or  to  contradict  declarations  made  by  a  judge  in  the 
presence  of  a  party,^^  or  to  interrupt  a  judicial  proceeding  by  de- 
nying a  statement  made  by  a  witness,^''  as  the  conduct  of  cases  in 
court,  including  the  decision  of  what  witnesses  are  to  be  called 
to  the  stand  is  with  counsel.^^  But  failure  of  a  party  to  take  the 
stand  to  deny  evidence  given  may  be  an  admission  of  its  truth.^' 
Therefore  depositions  taken  in  the  presence  of  a  party  during  a 
judicial  investigation,  observations  made  by  a  magistrate  to  the 
parties  before  him,  and  confessions  of  an  accomplice  criminating 
his  co-prisoner  before  the  justices,  will  not  in  any  subsequent  trial, 
whether  civil  or  criminal,  be  evidence  against  the  party  who  heard 
them  in  silence ;  because  in  judicial  inquiries  a  regularity  of  pro- 
ceeding is  adopted,  which  prevents  a  person  from  interfering 
when  and  how  he  pleases,  as  he  naturally  would  do  in  a  common 
conversation.^"  The  same  inferences  cannot,  therefore,  be  drawn 
from  his  silence  or  his  conduct  on  such  occasions,  as  might  rea- 
sonably result  from  similar  behavior,  were  he  under  no  restraint ; 
and  as  it  is  only  for  the  sake  of  these  inferences  that  the  state- 
m.ents  of  other  persons  can  ever  be  admitted,  they  are  properly 
rejected  whenever  they  do  not  warrant  the  inferences  sought  to  be 
drawn  from  them.  If,  however,  the  statement  of  one  person  calls 
for  a  reply  from  another,  it  may  then  be  read  in  connection  with 
the  reply,  and  is  evidence  against  the  party  replying,  so  far  as 
the  answer  directly  or  indirectly  admits  its  truth ;  and  it  makes 
no  difference  in  the  application  of  this  rule  whether  the  words 
were  spoken  by  an  interested  party  or  a  stranger;  whether  they 

'*Boyd  V.  Bolton,  8  Ir.  Eq.  R.  113.  ='»  Thayer  v.  Usher,  98  Maine,  468, 

»  Caseday  V.  Lindstrom,  44  Or,  309,  57    A.    839;   Blanchard    v.    Hodgkins, 

75  Pac.  22*2.  62  Maine,   119. 

*«  Keith  V.  Marcus,  181  Mass.  377,  '"Melen  v.  Andrews,  M.  &  M.  336; 

63  N    E    R.  924.  Short  v.  Story,  Eoscoe  Ev.  38;  R.  v. 

"Horan   v.   Byrnes,    72   N.   H.    93,  Appleby,  3  Stark.  33;  R.  v.  Turner, 

COO,  54  A.  945,  949.  1    Moo.    C.    C.    347,    348;      Child   v. 

"  Commonwealth     v.    Burton,     183  Grace,  2  C.  &  P.  193. 
Mass.  461,  67  N.  E.  R.  419,  423. 


550 


Evidence. 


[Chap.  16 


were  addressed  or  not  to  the  party  replying;  or  whether  they  fell 
from  the  parties,  the  witnesses  or  the  court,  in  a  judicial  proceed- 
ing, or  were  uttered  during  the  course  of  an  ordinary  conversa- 
tion.^^ 

But  the  silence  of  the  party  is,  at  best,  worth  very  little  as 
evidence  of  acquiescence,  even  where  the  declarations  are  ad- 
dressed to  himself,  even  at  a  time  when  he  is  at  full  liberty  to 
reply  as  he  thinks  fit;  and  if  he  has  no  means  of  knowing  the 
truth  or  falsehood  of  the  statement,  the  fact  that  he  did  not  in 
terms  deny  it  is  almost  valueless.^^  In  all  these  cases,  it  must 
always  be  distinctly  remembered  that  it  is  not  the  statement  made 
in  the  party's  presence  which  is  evidence  against  him,  but  it  is 
his  own  conduct  in  consequence  of  such  statement  which  is  the 
sole  evidence. ^^ 


"'Child  V.  Grace,  2  C.  &  P.  19.3; 
Jones  V.  Morrell,  1  C.  &  K.  2G6;  R. 
T.  Edmunds,  6  C.  &  P.  164;  Boyd 
V.  Bolton.  8  Jr.  Eq.    113. 

*^  State  V.  Rawls,  2  N.  &  M'C.  (S. 
C.)  301;  Batturs  v.  Sellers,  5  H.  & 
J.  (Md.)  117;  Hayslep  v.  Gymer,  1 
Ad.  &  El.  165. 

^A  statement  made  by  another 
person,  or  a  conversation  carried  on 
in  the  presence  and  hearing  of  a 
party,  to  which  he  made  no  reply, 
cannot  be  received  in  evidence 
against  him  as  an  implied  admission 
on  his  part  of  its  truth,  imless  it  ivas 
of  such  a  character  as  would  natur- 
ally call  for  a  response  from  him, 
and  he  loas  in  a  situation  in  which 
he  would  proiaily  have  replied  to  it. 
Lawson  v.  State,  20  Ala.  65;  Spen- 
cer V.  State,  20  id.  24;  Wilkins  v. 
Stidger,  22  Cal.  231;  Eolfe  v.  Rolfe, 
10  Ga.  143;  Abercrombie  v.  Allen, 
29  Ala.  281;  Brainard  v.  Buck,  25 
Vt.  573;  Hersey  v.  Burton,  23  Vt. 
685. 

But  the  declarations  of  one  party, 
made  in  the  presence  of  the  other 
which  do  naturally  call  for  a  reply, 
and  which  are  not  denied  "by  the 
other,  are  admissible  as  evidence  for 
the  former.  Block  v.  Hicks,  27  Ga. 
522;  Hagenbaugh  v.  Crabtree,  3  111. 
225 ;  Bailey  v.  Woods,  17  N.  H.  365 ; 
Corser  v.  *Paul,  41  N.  H.  24;  Mc- 
Clenkin  v.  McMillan,  6  Penn.  St. 
366;     Wells  v.  Drayton,    1  Mill    (S. 


C.)  Const.  Ill;  Hendrickson  v.  Mil- 
ler, 1  id.  296;  Drumright  v.  State, 
29  Ga.  430;  People  v.  McCrea,  32 
Cal.  98. 

Thus,  in  a  suit  against  an  admin- 
istrator for  taking  care  of  his  intes- 
tate while  a  minor,  the  defense  was 
that  the  latter  lived  with  the  plain- 
tiff's father.  A.,  and  that  the  service:! 
sued  for  were  rendered  by  him.  The 
presence  of  the  minor  at  A.'s  house 
liaving  been  proved,  it  was  held  that 
evidence  was  admissible  of  A.'s  dec- 
larations, made  when  the  minor  was 
introduced  into  the  family,  to  show 
in  what  relation  he  stood  to  it.  Max- 
well v.  Ratliff,  26   Ind.   157. 

A  party  is  not  called  upon  to  dis- 
pute an  account  on  every  occasion  on 
which  it  may  be  presented;  and 
when  evidence  of  any  act  or  declara- 
tion of  a  party  is  given,  as  tending 
to  prove  the  account,  care  should  be 
exercised  in  determining  ivhether  the 
circumstances  required  the  defendant 
to  dispute  the  account,  so  as  to  cause 
'|iis  omission  to  do  so  to  have  weight 
against  him.  Churchill  v.  Fulliam, 
8  Iowa,  45 ;  United  States  v.  Kuhn, 
4  Cranch  (U.  S.  C.  C),  401;  Bright 
v.  Coffman,  15  Ind.  371;  Gibnay  v. 
Marchay,  34  N.  Y.  301. 

Declarations  relating  to  the  sub- 
ject-matter of  a  suit,  made  by  a  third 
person,  in  the  presence  of  a  party  to 
the  suit,  and  to  which  such  party 
had  an  opportunity  to  reply,  but  did 


Sec.  167.] 


Admissions. 


551 


Sec.  167.  Conclusive  Admissions. 


Conclusive  admissions,  or  those  wliicli  the  party  malting  them 
cannot  deny,  are,  first,  those  which  are  expressly  or  tacitly  made 
hj  the  pleadings,  and  secondly,  those  which  have  been  acted  upon 
hy  others.  In  reference  to  admissions  by  the  pleadings  it  may 
be  said  that  a  party  may,  by  bringing  an  action  on  a  contract, 
estop  himself  from  denying  its  validity  and  obligation,  in  a  sub- 
sequent action  founded  thereon,  against  himself.^  At  all  events 
a  party  may,  by  an  admission  made  in  one  suit,  or  by  omitting  to 
plead,  conclusively  bind  himself  thereby  if  a  subsequent  action  is 


not,  are  admissible  in  evidence 
against  him.  And  such  evidence  can- 
not be  controlled  by  proof  of  differ- 
ent declarations  subsequently  made 
by  the  same  person  (who  died  before 
the  trial)  to  others.  Boston,  etc., 
R.  R.  V.  Dana,  1  Gray  (Mass.),  83; 
Turner  v.  Yeates,  16  How.  (U.  S.) 
14.  But  it  must  be  shown  that  the 
other  party  heard  the  declarations, 
or  was  in  a  situation  where  he  ought 
to  have  heard  them,  or  they  are  not 
admissible  against  him.  Thus  dec- 
lai-ations  made  by  one  claiming  a 
right  of  way,  concerning  it,  in  the 
presence  of  the  owner  of  the  estate, 
but  not  heard  by  him  by  reason  of 
deafness,  are  inadmissible  in  evidence 
against  him.  Tufts  v.  Chartown,  4 
Oray  (Mass.),  537. 

The  silence  of  a  tenant  for  life, 
when  remarks  are  made  in  his  pres- 
ence in  disparagement  of  his  title,  is 
held  to  be  no  evidence  against  his 
remainderman.  McGregor  v.  Wait, 
10  Gray    (Mass.),  72. 

In  an  action  upon  a  contract 
which  the  plaintiff  made  through  an 
interpreter,  statements  concerning 
the  contract  by  the  interpreter  in 
the  name  of  the  plaintiff  ai;e  admis- 
sible against  the  latter,  without 
proof  that  they  were  truly  the  plain- 
tiff's statements.  Camerlin  v.  Pal- 
mer Co.,  10  Allen    (Mass.),  539. 

Statements  made  in  the  presence 
of  and  hearing  of  a  party,  without 
contradiction  by  him,  will  not  be 
eonstrvied  as  an  admission  by  him  of 
their  truth,  unless  the  truth  of  the 
statements  must  necessarily  have 
been    within    his    knowledge.        Ed- 


wards V.  Williams,  3  Miss  (2  How.) 
846. 

Wliere  a  party  omits  to  assert  his 
claim  to  one  or  more  large  sums  of 
money  when  all  his  demands  are  sub- 
mitted to  an  arbitrator,  such  conduct 
is  construed  as  an  admission,  to  be 
properly  used  against  him  when  sub- 
sequently setting  up  a  claim  to  the 
same  money.  Such  conduct,  how- 
ever, is  open  to  explanation  by  the 
party,  as  resulting  from  accident  or 
mistake.  Moore  v.  Dunn,  42  N.  H. 
471. 

An  admission  will  never  be  pre- 
sumed from  mere  silence,  under  the 
bare  assertion  of  a  claim,  even 
though  the  claim  is  made  by  the 
party  in  whose  favor  it  is  asserted. 
But  if  a  party  in  answer  to  such  a 
claim  makes  any  declarations  as  10 
his  own  rights,  the  whole  conversa- 
tion must  be  submitted  to  the  jury. 
Mattocks  V.  Lyman,  16  Vt.  113.  If, 
however,  the  statement  calls  for  a 
reply,  and  it  is  of  such  a  character 
that  if  it  was  not  true  the  party 
would  naturally  deny  it,  his  silence 
is  admissible  as  tending  to  show  that 
the  statements  were  true.  Thus  the 
omission  of  a  party  to  reply  to  state- 
ments in  a  letter  about  which  he  has 
knowledge,  anw  which,  if  not  true,  he 
would  naturally  deny,  especially 
when  he  replies  to  other  parts  of  the 
letter,  is  evidence  tending  to  show 
that  the  statements  so  made  and  not 
denied  are  true.  Fenno  v.  •  Weston, 
31  Vt.  335. 

^  Fishmongers'  Co.  v.  Robertson,  5 
M.  &  G.  192. 


552  Evidence.  [Chap.  16 

brouglit  against  him  for  the  same  cause.^  But  the  party  may 
show  that  the  alleged  admission  was  not  in  fact  signed  or  author- 
ized by  him.  This  rule  applies  to  bankruptcy  as  well  as  to 
chancery  proceedings.^ 

Statements  made  by  a  party  in  a  pleading  whch  is  superseded 
or  withdrawn  are  admissions  and  may  go  to  the  jury  as  affecting 
the  weight  and  value  of  his  later  testimony/  although  their  with- 
drawal does  nullify  their  conclusiveness.^  Where  an  admission  is 
made  on  account  of  the  absence  of  a  witness  to  prevent  a  contin- 
uance, that  admission  is  not  evidence  in  a  subsequent  trial  when 
the  witness  is  present.® 

A  pleading  in  another  cause  to  which  only  one  party  to  the  case 
on  trial  was  a  party  may  be  introduced  against  the  pleader  to 
show  admissions  made  by  him.'  A  statement  by  counsel  in  open- 
ing admitting  certain  things  is  binding  upon  the  client  and  ob- 
viates the  necessity  of  proof  of  those  matters  by  the  other  side,* 
when  made  even  in  a  former  trial  of  the  same  case.' 

A  plea  of  guilty  in  a  criminal  proceeding  is  evidence  against 
the  party  as  an  admission  in  a  civil  proceeding  involving  the  same 
facts.  Such  plea  is  an  admission  of  a  solemn  character,  although 
it  is  not  an  estoppel  and  may  be  rebutted  or  explained.  It  may 
not  be  evidence  of  surplusage  alleged  in  the  indictment,  but  it  is 
evidence  of  each  and  every  element  needed  to  constitute  the  of- 
fense admitted  as  a  crime.^° 

The  consent  to  a  court  order  is  conclusive  in  that  cause,  but  in 
another  cause  the  consenting  party  would  not  be  estopped  from 
showing  the  motive  and  intention  of  the  consent.^^  The  motion 
of  a  party  in  arrest  of  judgment  on  the  ground  that  the  descrip- 

^Skelton  v.  Hawling,  1  Wils.  258;  Co.,  40  W.  Va.  413,  21  S.  E.  1035,  52 

Dawes    v.    McMichael,    6    Paige     (N.  Am.  St.  Rep.  890. 

Y.)    Ch.    139;   McGowen  v.  Young,   2  'Pratt  v.  Conway,  148  Mo.  291,  49 

Stew.    (Ala.)    276.  S.    W.    1028,    71    Am.    St.    Rep.    602, 

"  Nicholson  v.  Snyder,  97   Md.  415,  where  a  defendant  in  opening  admit- 

55  A.  484,  486.  ted    the    plaintiff's    legal    title    to    a 

*  McDonald   v.   Nugent,    122    Iowa,  promissory  note. 

651.  98  N.  W.  506.  "Missouri   &   K.    Telephone    Co.   v. 

"Caldwell     v.     Drummond     (Iowa,  Vandevort,  67  Kan.  269,  72  Pac.  771. 

1903),   96   N.   W.    1122;      Schultz  v.  ^"Wagner  v.  Gibbs,  80  Miss.  53,  31 

Culbertson    (Wis.,   1905).    103   N.   W.  South,  434,  92  Am.  State  Rep.   598; 

234:   Alabama  Midland   R.  R.  Co.   v.  Wesnieski  v.  Vank    (Neb.,   1904),   99 

Guilford,  119  Ga.  523,  46  S.  E.  655.  N.   W.   258.     Malicious   prosecution. 

•Cutler  V.  Cutler.  130  N.  C.  1,  40  "In  re  Duncan,  64  S.  C.  461,  42 

S.  E.  689,  89  Am.  St.  Rep.  854.  S.  E.  433. 

'  Wilson  V.  Phoenix  Powder  Manfg. 


Sec.  167.]  Admissions.  553 

tion  of  his  land  in  a  commissioner's  report  ^as  too  indefinite  is 
an    admission    of   record    that   the    description   was    defective. 
Testimony    at    a    former    trial    is    admissible    as    an    admis- 
sion   against    the     party,     although     it    is     not    eontradictory 
of    any    statement    made    by    him    m    a    second    trial        But 
an  admission  made  in  the  pleadings  in  one  actionis  no    admis- 
sible in  another,  unless  p-ecisely  the  same  matter  rs  being  litigated 
tsuch  other  action}^     Thus  a  libel  filed  by  a  party  to  another 
suit  cannot  ordinarily  be  given  in  evidence  agamst  him  as  an  ad- 
mission; but  if  he  brought  the  suit  as  a  trustee,  and  recovered  the 
cestuis  que  trust  may  put  the  whole  record  m  evidence  to  show 
the  recovery  and  the  title  on  which  it  rested.-    A  bill  m  equity 
is  not  evidence  against  the  complainant  in  a  trial  at  law,    nor  is 
a  bill  brought  by  an  administrator  admissible  against  the  estate. 
So  it  seems  that  a  bill  for  an  injunction  not  filed  as  an  original, 
the  order  upon  which  has  never  been  complied  with,  cannot  be 
considered  as  a  record  of  court,  so  as  of  itself  to^  be  evidence  m  a 
chancery  suit  beween  the  same  parties.-     And  the  same  rule  has 
been  adopted  as  to  a  bill  of  discovery  which  has  been  withdrawn 
before  any  answer  to  it  has  been  filed,-  or  where  the  bill  and 
answer  are  offered  together. 

It  may  be  said  to  be  the  general  rule,  that,  whenever  a  material 
averment  well  pleaded  is  passed  over  hy  the  adverse  party  without 

•'-%'  i^r'^' '''  ""■  '''■ '"  ^i.  r.''*i  *e^eeS?;r„  i<  r.,et|. 

""■^P.     Par.e-urg      ,Iowa,      -»'„■  ,-- •^I'^^.^^SlJ/S^','; 

137  ;   Church  v.   Sheton    2   Curt       U.       f^;  da"^'  ^  ^^  ^^  ,^ii  ,,,,,a^  and  S. 

S. )   271 ;  Melvm  v    \^  hitney    13  Pick.      f^'  4f  ^^/^elied  upon  the  title  of 

l.''"V  T^Lh  •  iS^C)  Z    2?'   Van  R.  anYr;    It  was  hefd  that  the  bill 

Day,   1   Rich,    (f-  V")    ^%,f;',     "^^tr  ^f  r   against  F.,  since  it  was  sworn  to 

Rensselaer    v.    Aikin,   22    VVend     (N.  ?^JJ,  ^°^^'°   i^inVnt,  and  since  his  an- 

Y.)    549;      Henderson   v.    CargxU,   31  ^y^^^^y"™?™ 

Miss.  367.  J  ■        „Ti„ht  be  u«ed  in  evidence  in  re- 

S,:„^p"  V*  ulnry'Tuk.  ISl?  at  'I  ^^'^e  un.ev  .MO,  ,.e  .e,d 

R     A.  B.  and  C.  became  purchasers.  ^8.     ^''\''''2u    e,Q--> 

f:  bought   the   shares   of   B.    and   C  NnckoUs    37  Ala    66             ^^^^    ^^^^ 

agreeing  with  R.  to  conv^'     them  to  „  Cr-dall  v.     ^^^P,^^^      ^      ^^^^^ 
him  upon   payment  of   the   purchase 


rooney.    At  a  trustee's  sale,  S.,  by  or-  (^j^^)     •                .        jg  Mo.   112. 

der   of   the   chancellor,   purchased   a  1  ..  ^"^"^  ""^  Cepew,    25    Penn. 

the  ri-ht  of   F.  and  R.  m   said  land.  Claik    v.  i^epe    , 
R.  filed  his  bill  prior  to  the  trustee  d 


^laiK.     V.     jL-'tyv",     --     • 

509. 


554  Evidence.  [Cliap.  16 

denial,  whether  hy  pleading  in  confession  and  avoidance,  or  hy 
traversing  some  other  matter,  or  hy  demurring  in  law,  or  hy  suf- 
fering judgment  to  ge  hy  default,  it  is  therehy,  for  the  purpose 
of  pleading,  if  not  for  the  purpose  of  trial  hefore  the  jury,  coiv- 
clu^ively  admitted}^  But  it  is  only  as  to  material  allegations  that 
the  rule  operates,  and  therefore  a  demurrer  admits  no  more  than 
is  well  pleaded  f^  and,  if  a  plea  denies  a  particular  fact  alleged  in 
the  declaration,  it  does  not  thereby  admit  all  the  immaterial  state- 
ments which  the  pleader  has  chosen  to  introduce  as  part  of  the 
plaintiff's  case.^^  Thus,  where  a  declaration  in  assumpsit, — after 
stating  that  the  defendants  were  owners  of  a  vessel,  on  which  the 
plaintiff  caused  to  be  shipped  some  potatoes  to  be  carried  by  them, 
as  owners  of  the  vessel,  to  Liverpool ;  in  consideration  whereof, 
and  of  freight,  they  promised  to  carry  the  potatoes  safely  as  afore- 
said,— alleged  as  a  breach,  that  through  their  negligence  they 
were  damaged,  it  was  held  that  the  plea  of  non  assumpserunt  did 
not  admit  that  the  defendants  were  owners,  so  as  to  raise  ihe  in- 
ference that  the  captain  was  their  agent,  the  allegation  of  owner- 
ship being  regarded  as  wholly  immaterial.  The  declaration  would 
have  been  equally  good  had  there  been  no  such  allegation ;  because 
the  statement  that,  in  consideration  of  tlie  plaintiff  having 
shipped  the  goods,  and  of  the  freight,  the  defendants  promised  to 
carry  them  safely,  when  coupled  with  an  allegation  that  the  goods 
were  not  safely  carried,  was  sufficient  to  make  a  complete  case  of 
liability  against  the  defendants.^* 

An  admission  in  the  record  does  not  have  the  effect  of  shifting 
the  burden  of  proof,  but  is  treated  as  a  mere  luaiver  of  requiring 
proof  of  those  parts  of  ihe  record  which  are  not  denied,  the  party 
heing  willing  to  rest  his  claim  on  the  other  facts  in  dispute;  but 
if  any  inferences  are  to  be  drawn  by  the  jury,  they  must  have 
the  facts  from  which  such  inferences  are  to  he  drawn  p'oved  like 
any  other  facts}^ 

*'  Com.    Dig.    Pleader,    G.    2 ;     Ste-  "  Bennion  v.  Davison,  3  M.  &.  W. 

phens  on  Plead.  248;  Jones  v.  Brown,  179,    182,    183;    Dunford   v.   Trattles. 

1    Bing.    N.    C.    484;    De    Gaillon    v.  12  M.  &  W.  532. 

li'Aigle,  1   B.   &  P.   368;   Stephens  v.  '"Edmunds  v.   Groves,   2   M.   k.  W. 

Pell,  2  Dowl.  629;   Green  v.  Hearne,  642,   645;    Bennion   v.   Davison,   3   M. 

3  T.  R.  301.  &    W.    183;    Edmunds    v.    Groves,    2 

"Van   Landau  v.   Turner,   6   Q.   B.  M.  &  W.  643.     In  Fearn  v.  Filica.  7 

785.  'M.   &   Gr.    517,   Cresswell,     J.,     ob- 

^  Bennion  v.  Davison,   3  M.   &  W.  served,    with    reference    to    this    doo- 

179;    Dunford   v.    Trattles^    12   M.    &  trine.  "I  take  it  that  what  my  brother 

W.  534.  .Alderson   meant  was,    that   the   fact 


Sec.  168.]  Admissions.  555 

But  the  Court  of  Queen's  Bench  has  held  that  an  admission  in 
the  pleadings,  whether  expressly  or  by  omitting  to  traverse  an 
allegation,  is  an  admission  for  all  purposes  as  to  the  issues  arising 
from  that  pleading,  whether  the  facts  relate  to  the  parties  or  to 
third  persons,  if  the  allegation  so  admitted  is  material.^® 

Sec.  1 68.  Effect  of  plead  of  General  Issue,  Etc. 

The  general  issue  or  other  plea  in  bar  admits  the  character  in 
which  the  plaintiff  sues  ;^  as,  where  a  person  sues  as  administrator, 
that  he  is  administrator  f  and  if  he  sues  as  administrator  de  bonis 
non?  or  cum  testamento  aniiexo*  such  plea  admits  that  the  plaintiff 
legally  possesses  that  capacity,  and  the  admission  is  conclusive,^ 
and  the  defendant  cannot  question  the  regularity  or  sufficiency  of 
his  appointment;®  and  the  same  rule  applies  in  all  cases  where 
a  person  sues  in  an  official  capacity,  as  where  he  sues  as  State 
treasurer.^ 

So,  where  a  corporation  sues,  a  plea  of  the  general  issue  or  in 
bar  admits  the  corporate  capacity  of  tlie  plaintiff,  and  dispenses 
with  proof  of  the  character,  organization,  etc.,^  and  this  is  the 
rule  even  as  to  foreign  corporations.'  So  where  the  plaintiff  sues 
as  guardian.^"  So  it  admits  the  residence  of  the  plaintiff,  as  if  he 
sets  himself  up  as  a  foreigner  or  a  citizen  of  a  certain  State  for 
the  purpose  of  giving  jurisdiction  to  tlie  Federal  courts.^^     The 

jut  in  issue  was  to  be  proved  just  as  °  Champlin     v.     Tilley,    ante;    Hen- 

if  no  admission  were  made  on  the  re-  derson  v.  Clark,  ante. 

cord;    that   is,   that  an    admission  in  'State  Treasurer  v.  Wiggins,  1  Mc- 

the  record  is  not  to  be  taken  to  prove  Cord    (S.  C. ),  468. 

the  issue;"   and   his  Lordship   added,  *  Prop,     of     Kennebec    Purchase    v. 

"If  the  rule  is  not  as  stated  by  Al-  Call,  1  Mass.  483 ;  Conrad  v.  Atlantic 

DERSON,  B.,  this  singular  state  of  cir-  Ins.  Co.,  1  Pet.   (U.  S.  C.  C.)    388. 

cunistances    might    arise, — a    counsel  ''Taylor    v.    Bank,    7    Mon.     (Ky. ) 

might   ask   the   jury   from   the    mere  ^76;    Society   for  Propagation  of  the 

state   of   the   record    to    infer   a    fact  Gospel,  etc.,  v.  Pawlet,  4  Pet.   (U.  S.) 

which   was    directly    in     issue."      Id.  4S0. 

518.  ''■  Harper     v.     Distrehan,     2    Mart. 

"'Bingham   v.    Stanley,   29    B.    121.  (La.)    389. 

^Carpenter   v.   Whitman,    15   John.  ^^  De  Wolf  v.    Rabaud,    1    Pet.    (U. 

(N.  Y.)  208;  State  Treasurer  v.  Wig-'  S.    C.    C.)    476;    and    the    same    rule 

gins,  1  McCord   (S.  C.)   468.  prevails  where  the  plaintiff  sets  him- 

'  Fraux  v.  Fraux,  2  N.  J.  L.   166;  self  up   as  a  citizen   of  the   State   in 

{Smith  v.  Ludlow,  Anth.   (N.  Y.)    127.  which  he  sues  for  the  purpose  of  ob- 

"Floyd     V.     Breckenridge,     4     Bibb  taining  certam  advantages  which  can 

(Ky. ),  14.  only    be    enjoyed    by    citizens    of    the 

*  Champlin      v.      Tilley,      4      Day  State.     Shivers  v.  Wilson,  5  H.  &  J. 

<Conn.),   303.  (Md.)    130. 

'  Henderson      v.      Clark,      4      Bibb 
.(Ky.)  391. 


556 


Evidence. 


[Chap.  16 


general  issue  in  a  writ  of  entry  admits  the  defendant's  tenancy  of 
the  freehold.^^  In  dower,  denial  of  the  marriage  or  seizin  admits 
all  other  material  allegations,  as  a  demand  of  dower,  etc.,^^  and  a 
denial  of  marriage  admits  the  seizin."  In  a  writ  of  right  the 
mise  precludes  all  evidence  of  non-tenure, ^^  and  in  formedon  in 
the  descender,  non  devastavit  admits  all  the  material  facts  in  the 
court  except  the  demise.^^  But  in  replevin  7ion  cepit  in  alio  loco 
does  not  admit  the  taking. ^^ 

In  assumpsit,  by  the  assignee  of  an  insolvent,  the  general  issue 
was  held  not  to  supersede  the  necessity  of  proving  that  the  plain- 
tiff was  assignee.^^  And  so  of  an  insolvent's  trustees.^'  And 
where  sealed  contracts  are  made  negotiable  by  statute,  non  est 
factum  does  not  admit  the  assignment.^'* 

The  plea  of  non  est  factum  to  an  action  of  debt  or  covenant 
puts  the  execution  of  the  deed  alone  in  issue;  and  the  plaintiff 
need  not  prove  any  averments,  except  such  as  relate  to  the  validity 
of  the  deed.^^ 


"  Killeran  v.  Brown,  4  Mass.  443; 
Mills  V.  Pierce,  2  N.  H.  9. 

'^Ayer  v.  Spring,   10  Mass.  80. 

"  Fitzgerald  v.  Garvin,  Charlt. 
(Ga.)   281. 

"  Bailer  v.  Peterborough,  3  Rand. 
(Va.)    563. 

''  Dudley  v.  Sumner,  5  Mass.  4S8. 

"  Williams  v.  Welch,  5  Wend. 
(N.  Y.)  290. 

^-^Best  V.  Strong,  2  Wend.  (N.  Y.) 
319. 

^'  Winchester  v.  Union  Bank  of 
Maryland,  2  G.  &  J.  (Md.)   73. 

'"•McMurty  v.  Campbell,  1 
Hamm.    (Ohio)  262, 

"  Under  this  rule  it  was  held  that 
in  covenant  to  pay  on  receiving  one- 
third  of  the  plaintiiT's  dower,  non 
esi  factum  admitted  that  the  condi- 
tion was  fulfilled,  and  dispensed 
with  proof  of  this  at  the  trial.  Gard- 
ner v.  Gardner,  10  John.  (N.  Y.)  47. 
So  of  eviction,  alleged  in  covenant  for 
quiet  enjoyment,  Kane  v.  Sanger,  14 
John.  (N.  Y.)  89,  so  of  assets  in 
covenant  against  an  heir,  the  decla- 
ration averring  assets,  Woodford  v. 
Pendleton,  1  H.  &  M.  (Va.)  303,  so 
that  the  bond  declared  on  is  not  void- 
able as  being  -given  contrary  to  cer- 
tain   legislative    provisions,    for    this 


must  be  pleaded  specially.  Commis- 
sioners V.  Hanion,  1  N.  &  M'C.  (S. 
C. )  554,  555.  So  in  some  States, 
where  an  equitable  defense  is  admis- 
sible, 71011  est  factum  admits  that  the 
bond  was  obtained  without  fraud  or 
misrepresentation,  and  upon  full  con- 
sideration, which  has  not  failed,  etc.; 
and  if  the  contrary  be  intended  as  a 
defense,  it  must  be  specially  pleaded, 
or  notice  must  be  given.  Adams  v. 
Wylie,  1  N.  &  M'C.  (S.  C.)  78;  Bol- 
linger V.  Thurston,  2  Rep.  Const.  Ct. 
(S.  C.)  447.  So  this  plea  admits 
the  amount  averred  to  have  been 
awarded,  in  an  action  upon  an  arbitra- 
tion bond.  Graham  v.  Allen,  2  N.  & 
M'C.  ( S.  C. )  492.  So  non  est  factum, 
to  a  constable's  surety  bond,  though, 
with  notice  that  the  plaintiff  (re- 
lator) had  been  satisfied  by  bidding 
in  property,  does  not  warrant  evi- 
dence of  declarations  made  by  him, 
calculated  to  lull  the  constable  into 
security;  the  relator  thus  bringing 
the  damage  upon  himself,  and  leaving 
the  constable  free  from  blame.  Peo- 
ple v.  Holmes,  5  Wend.  (N.  Y.)  191. 
So  in  an  action  by  the  lessee  againot 
his  lessor  on  the  covenant  of  title, 
nOii  est  factum  admits  the  want  of 
title,  Barney  v.  Keith,  6  Wend.    (N. 


Sec.  168.]      .  Admissions.  557 

A  plea  of  justification  in  an  action  of  malicious  prosecution 
admits  the  proceedings  set  out  in  the  declaration,  and  throws  the 
onus  upon  the  defendant,  even  of  showing  probable  cause.^^     lu 
replevin,  a  plea  of  property  out  of  the  plaintiff  admits  the  tak- 
ing,'' and  non  cepit  admits  property  in  plaintiff.'*    A  general  plea 
of  tender  to  two  counts,  one  on  an  account  stated,  and  another  on 
a  quantum  meruit,  is  conclusive  that  a  claim  for  both  causes 
exists,  and  cannot  be  afterwards  limited  to  an  account  stated,  or 
to  a  special  agreement  for  a  sum  certain.''    A  plea  of  payment  to 
'  an  action  of  assumpsit  admits  the  cause  of  action  f  to  an  action 
upon  an  award,  it  admits  the  award  f  to  an  action  on  judgment, 
it  admits  the  judgment.'^    Liberum  tenementum  conclusively  ad- 
mits the  trespass,   and  the  plaintiff's  possession  of  the  close  ;'^ 
solvit  ad  diem  admits  the  execution  of  the  bond,^"  and  on  an 
,  issue  of  property  or  not  property,  the  taking  cannot  be  ques- 
,  tioned.'^     A  plea  of  performance  to  an  injunction  bond  admits 
the  dissolution  of  the  injunction,  and  all  other  facts  well  pleaded,^' 
and  a  plea  of  set-off  admits  the  plaintiff's  demand.^^     An  aver- 
ment that  a  bond  is  discharged  admits  that  it  was  executed,^*  and 

Y  )  555  •  in  covenant  for  money,  al-  plevin  bond  that  the  writ  de  ret.  hah. 
leginff  non-payment  and  averring  per-  was  returned  unsatisfied,  this  not  be- 
formance  of  conditions  precedent,  as  ing  averred.  Cowdin  v.  Stanton,  12 
the  procuring  and  delivery  of  patents.  Wend.  (N.  Y.)  120.  ,xt  v  > 
etc.,  it  admits  the  non-payment,  and  ''Morns  v.  Corson,  7  Cow.  (N.  Y.) 
that  the  conditions  were  performed,  281.  .  o  t»t  /it  . 
Dale  V.  Roosevelt,  9  Cow.  (N.  Y.)  «Hume  v.  Gillespie,  3  Mon.  (Ky.) 
307;     Courcier  v.  Graham,  1   Hamm.  184. 

(Ohio)     330,     in    covenant    averring  "Harper  v.  Baker,  3  Mon.    (Ky.) 

notice,  it  admits  the  notice,  Thomas  421.                                               •„     ,     o 

V  Woods  4  Cow.  (N.  Y.)  173;  in  ="  Huntington  v.  American  Bank,  6 
debt  on  a  bail  bond  assigned  by  the  Pick.   (Mass.)   340. 

sheriff,  it  admits  that  it  was  legally  =»  Haley  v.  Callar,  1  Ala.  63 

assigned,      Soloman      v  .    Evans,      3  "  Fraux  v.  Fraux,  2  N.  J.  L.  166 

M'Cord  (S.  C),  274;  in  covenant  for  '« Raymond  v.  Wheeler,  9  Cow.   (N. 

nondelivery  of  slaves  on  demand,  it  Y. )   295.                         ^    ,   xt    r    iv/r^n 

admits   the   demand,   Mitchell   v.   De  "  Singleton  v.  Millet,  1  N.  &  M  C. 

Graff enreid,  1  Harp.   (S.  C.)   450;  :n  (S.  C.)    355;     Caruth     v.     Allen,     2 

debt  on  an  appeal  bond,  it  admits  all  M'Cord   ( S.  C. ) ,  226. 

the  averments  as  to  matters  of  record,  *°  Sandford  v.  Hunt,  1  C.  &  D.  118. 

non-payment,  etc.,  Legg  v.  Robinson,  "Hume  v.  Gillespie,  3  Mon.   (Ky.) 

7   Wend.    (N.  Y.)    194;  Hamilton  v.  184.                                          -r     t    ^r 

Averill,  11  id.  624,  and  the  want  of  •'Harrison  v.   Park,    1   J.   J.   Mar. 

title  as  well  as  the  eviction,  etc.,  in  (Ky.)   170,  172. 

an  action  on  a  covenant  of  warranty,  -"Morgan  v.    Boone,    1   J.    J.   Mar. 

Cooper  v.  Watson,  10  Wend.   (N.  Y.)  (Ky.)  585,  586. 

202,  but  not  any   fact  which  is  not  »*Naba  v.  Carlin,  3  La.  373. 
averred;     as  in  an   action  on  a  re- 


558 


Evidence. 


[Cbap.  16 


an  answer  insisting  on  payment  admits  the  allegation  in  the  peti- 
tion, of  goods  sold  to  the  defendant.^^ 

But  it  should  be  remembered  that  a  plea,  though  it  admits  the 
cause  of  action,  does  not  admit  its  amount;  and  so  of  amounts 
admitted  by  affirmative  pleading  in  any  stage,  as  by  replication, 
etc.,  unless  the  precise  sum  be  made  material  by  the  pleadings. 
In  this  respect,  the  affirmative  plea  is  like  a  judgment  by  default 
or  on  demurrer,  where  damages  must  still  be  assessed.^^  A  good 
instance  is  the  plea  of  payment  in  an  action  of  assumpsit." 

To  the  usual  plea  of  an  insolvent  discharge,  the  replication 
denied  that  the  defendant  was  discharged  as  he  alleged.  It  was 
held  that  it  was  necessary  to  show  jurisdiction,  as  this  was  ad- 
mitted by  the  replication;  and  so  was  the  filing  of  the  petition, 
the  same  as  any  other  fact  not  denied.^^  The  replication  of  a 
new  promise  to  a  plea  of  infancy  admits  the  infancy. ^^ 


'=Akin  V.  Bedford.  4  La.   615. 

^"Waggener  v.  Bells,  4  Mon.  (Ky.) 
7,  11,  12. 

«'  Haley  v.  Callar,  1  Ala.  63. 

*' Andrews  v.  Pledger,  4  C.  &  P. 
381. 

^'Goodsell  V.  Myers,  3  Wend.  (N. 
Y.)    479. 

It  was  held  that  where  the  defend- 
ant went  to  trial  without  a  rejoinder, 
the  facts  stated  in  the  replication 
should  be  taken  as  admitted,  although 
the  attention  of  the  court  and  jury 
was  not  called  to  the  state  of  the 
pleadings;  and  there  being  a  verdict 
for  the  defendant,  a  new  trial  was, 
for  that  reason,  granted.  Porter  v. 
Kent,  1  M'Cord  (S.  C),  205.  Mo^jt 
courts  would  probably  have  amended 
the  isue  and  retained  the  verdict.  To 
a  plea  of  set-off,  and  that  the  plain- 
tifi"  got  a  transfer  of  the  note  to 
avoid  the  set-off,  a  replication  that 
the  note  was  the  plaintiff's  property 
was  held  to  admit  both  the  set-o/TT 
and  the  fraudulent  transfer.  Savage 
V.  Davis,  7  Wend.  (N.  Y.)  223.  Tho 
plea  of  non-tenure  to  an  avowry  for 
rent,  setting  up  a  seizin  and  deducing 
title,  admits  the  seizin  and  demise. 
Bloomer  v.  Juhel,  8  Wend.  (N.  Y.) 
408.  Ricns  in  arrere  admits  the  de- 
fendant's title.  Bloomer  v.  Juhel, 
ante.  To  an  avowry  and  cognizance 
setting  forth  a  lease  and  rent,  by  two 


defendants,  averring  that  B.,  one  of 
the  defendants,  distrained  as  bailiff 
of  A.,  the  other,  the  plaintiff  pleaded, 
simply  denying  that  B.  was  bailiff, 
and  held  that  this  admitted  the  lease 
and  the  amount  of  rent,  as  set  forth. 
Solomon  v.  Harvey,  1  N.  &  M'C.  (S. 
C. )  81.  Qui  non  negat,  fatetur,  is 
the  maxim  in  respect  to  pleading.  All 
material  allegations  not  denied  are 
admitted.  Thus,  where  in  trespass 
de  bonis  asportatis  the  deTendant 
pleaded  that  he  assisted  the  sheriff  in 
taking  the  goods  in  execution  against 
the  plaintiff,  and  the  plaintiff  replied 
a  previous  ca.  sa.,  an  arrest  and  a 
voluntary  escape,  and  that  the  de- 
fendant then  sued  out  the  execution 
in  question,  and  the  rejoinder  was 
that  this  execution  was  sued  out  by 
another,  and  not  the  defendant,  this 
was  held  to  admit  the  escape  and 
other  material  allegations,  except 
that  this  execution  was  sued  out  by 
the  defendant.  Cheever  v.  Mirrick, 
2  N.  H.  376.  On  replication  setting 
forth  a  code  of  by-laws  and  alleging 
a  breach,  an  issue  on  the  breach  ad- 
mits the  by-laws.  Union  Bank  of 
Maryland  v.  Ridgley,  1  H.  &  (?. 
(Md.)  324.  In  assumpsit,  the  de- 
fendant pleaded  a  set-off  of  $2,500; 
replication  that  the  defendant  was  in 
debt  to  the  plaintiff"  $3,000,  and  paid 
the   plaintiff  $2,500   in   part  thereof; 


Sec.  168.] 


Admissions. 


55& 


The  form  of  the  issue  indicates  the  proof  which  is  admissible 
under  the  pleadings;  if  the  complaint  alleges  that  the  deW-^^ 
opened  a  ditch  in  the  highway,  and  that  plaintiff    without  any 
fault  or  want  of  care  on  his  part,  fell  into  it,  and  the  answer 
denies  that  the  plaintiff  without  any  fault  or  want  of  care  on  h 
part  did  fall  therein,  the  issue  involves  the  fact  of  his  falling  into 
I   and  plaintiff's  care  or  want  of  care.-     And  if  the  complaint  is 
for  work  and  labor  performed,   and  goods  sold   and  delivered, 
claiming  $197.25,  and  the  answer  alleges  that  the  goods  were  fur- 
nished, and  the  services  rendered  under  an  agreement  at  stipu- 
lated prices,  amounting  to  $181.00,  but  that  they  were  worth  no 
more  than  $173.00,  the  defendant  mayshow^the  work  done  under 

a  contract,  and  that  there  were  defects  in  it."' 

The  tacit  admission  of  a  material  fact  by  pleadmg  over  and 

traversing  some  other  material  allegation,  will  not  operate  m  the 

cause  to  the  prejudice  of  the  party  making  it,  if  he  succeeds  on 

the  issue  raised  in  his  traverse."^ 


rejoinder,  that  he  had  not  owed  the 
$3  000;      the   plaintiff  has   the  onus, 
for  he  has  admitted  by  the  replica- 
tion the  payment  of  the  $2,500.  Wag- 
o-ener  v    The  Bells,  4  Mon.    (Ky.)    /, 
11      If  the  plaintiff  reads  a  part  of 
the    defendant's    answer    in    evidence 
without  objection,  the  facts  stated  in 
the  answer  and  so  read  may  be  taken 
as   proved,   though   the  answer   being 
denied   in  the  reply,  could  not  have 
been  read  if  objected  to.       People  v. 
Norton,  9  N.  Y.  176.     Under  an  ans- 
wer containing  a  general  denial  otau 
the     allegations     of     the     complaint, 
which  is  for  labor  and  services,  evi- 
dence of  payment  or  partial  payment 
is   inadmissible.       McKying  v.   BuJ, 
10  N.  Y.  297.     Where  the  complaint, 
on  a  "promissory  note,  alleges  that  de- 
fendants made  the  same  and  have  not 
paid  it,  the  answer  alleging  payment 
forms  a   direct  issue;   so  helu   under 
the  code  as  it  stood  in   1848.       "VaTi 
Giesen  v.  Van  Giesen,  10  N.  Y.  316. 
An  award  is  also  new  matter  whicli 
cannot  be  proved  unless  it  is  -iet  up 
in  the  answer.      Braill  v.   Isham,   l:i 


N.  Y.  9,  17.     So  is  the  defense  of  a 
former  'suit    pending.        Gardner    v. 
Clarke,    21    N.    Y.    399.     Partial    de- 
fenses may  be  pleaded.  11  N.  Y.  347; 
16  N.  Y.  297.     If  the  plaintiff  reads 
a  part  of  the  defendant's  answer   in 
proof  of  a  fact  stated  in  it,  then  the 
defendant  has  a  right  to  insist  that 
the  whole  answer  be  read  and  taken 
tof^ether.       Gildersleeve    v.   Mahoney, 
.T  Duer   (N.  Y.),  383.     In  pleading  a 
bankrupt's  discharge  it  is  held  neces- 
•^ary  to  show  that  the  court  had  juris- 
diction to  grant  it,  by  averring  the 
existence  of  the  facts  on  which  juris- 
diction depended.     But  when  the  dis- 
charo-e  is  offered  in  evidence,  jurisdic- 
tion °to  grant  it  should  be  presumed 
until   the   contrary   appears.       Ruck- 
man  V.  Cowell,  1  N.  Y.  505.     When 
the    discharge    is    given    in    evidence 
without    having    been     pleaded,    evi- 
dence is  admissible  to  impeach  it  for 
fraud.     Id.    507. 

*»Wall    V.    Buffalo    Water    Works 
Co.,  18  N.  Y.  119.  ^^    ^^^ 

*^Maffat  V.  Sackett,  18  N.  Y.  522. 
"Robins  v.  Maidstone,  4  Q-  B.  811. 


560  Evidence,  [Ghap.  16 

Sec.  169.  Omitting  to  traverse. 

The  omission  to  traverse  a  material  allegation  so  far  admits 
it  that  the  party  pleading  over  cannot  disprove  it.^  But,  although 
a  declaration  or  plea  in  an  action  may,  in  certain  cases,  be  used 
as  a  conclusive  admission  in  another,  it  can  never  he  used  by  the 
opponent  as  evidence  to  establish  his  case  on  another  issue  on  the 
same  record.^  For  instance,  if  not  guilty  and  a  justification  is 
pleaded  to  a  declaration  in  trespass,  the  admission  of  the  trespass 
in  the  justification  will  not  entitle  the  plaintiff  to  a  verdict  on  the 
plea  of  not  guilty ;  because,  whatever  issues  are  joined  upon  any 
counts  or  pleas  are  to  be  tried  by  the  jury  distinctly  from  eacli 
other.^  So  strict  is  this  rule,  that  a  special  plea,  held  bad  on  de- 
murrer, cannot  be  read  by  the  plaintiff  at  the  trial  of  the  general 
issue,  as  a  direct  admission  by  the  defendant  of  the  statements 
therein  contained,  though  the  jury  is  summoned  to  assess  the 
damages  on  the  demurrer,  as  well  as  to  try  the  cause  on  the  gen- 
eral issue;*  neither  can  the  defendant,  under  similar  circum- 
stances, advert  to  the  plea,  and  use  the  demurrer  as  an  indirect 
admission  by  the  plaintiff  of  the  facts  stated  in  such  plea.^  So, 
where  a  declaration  contained  two  inconsistent  counts,  on  the 
second  of  which  the  defendant  paid  money  into  court,  which  the 
plaintiff  accepted,  it  was  held  that  such  count,  and  the  proceedings 
thereon,  could  not  be  read  to  the  jury  by  tie  defendant  as  evi- 
dence to  negative  an  allegation  in  the  first  count. ^  It  was  con- 
tended, in  that  case,  that  taking  the  money  out  of  court  in  satis- 
faction of  the  matter  in  the  second  count  was  an  act  of  the  plain- 
tiff apparent  on  the  record,  of  which  the  defendant  was  entitled 
to  avail  himself.  But  the  court  held  that  this  part  of  the  plead- 
ing was  not  before  the  jury.'^ 

Sec.  170.  New  Assignment. 

A  new  assignment  does  not  admit  the  truth  of  those  matters 
stated-  in  the  plea  which  it  does  not  pretend  to  traverse;  for, 

^  Bonzi  V.  Stewart.  4  M.  &  G.  29.5 ;  » Gould  v.  Oliver,  2  M.  &  G.  234 ; 

Carter  v.   James,   13  M.   &  W.   145;  Harington    v.    Macmorris,    5    Taunt. 

Cawlinshaw  v.  Cheslyn,  1  C.  &  J.  481.  228. 

'Knight  V.  M'Douall,   12   A.   &    E.  *  Firmi  v.  Crucifix,   5  C.  &  P.  98; 

438.       See  Hyde  v.  Watts,   12   M.  &  Montgomery  v.  Richardson,  5  id.  247. 

W.  254,  as  to  when  the  defects  in  one  °  Ingram  V.  Lawson,  2  M.  &  R.  253. 

pleading  may  be  cured  by  admissions  "Gould  v.  Oliver,  2  M.  &  G.  208. 

contained  in  the  pleadings  of  the  ad-  ^  Gould  v.  Oliver,  ante.                     ^ 
verse  party. 


Sec.  170.]  Admissions.  ^^^ 

although  a  distinction  for  some  purposes  may  very  properly  be 
drawn  between  collateral  and  continuous  pleading,  and  it  may 
perhaps  be  contended  with  truth  that  a  new  assignment,  to  a  cer- 
tain extent,  falls  within  the  latter  class,  yet  it  is  obvious  that  the 
plaintiff,  by  adopting  this  course  of  pleading,  intends  to  waive 
all  inquiry  respecting  the  facts  stated  in  the  plea,  as  not  applying 
to  the  true  cause  of  action.    The  effect,  therefore,  of  a  new  assign- 
ment is  not  strictly  to  admit  the  truth  of  these  facts,  but  to  with- 
draw them  entirely  from  consideration,  as  forming  any  part  ot 
the  subject-matter  of  the  action,  and  thus,  on  the  one  hand,  to  pre- 
vent the  plaintiff  from  complaining  of  them,  and,  on  the  other, 
to  preclude  the  defendant  from  relying  on  them  m  the  support 
of  the  issue  raised  on  the  new  assignment.     They  are,  m  point  of 
fact,  to  be  regarded  as  if  they  were  struck  out  of  the  record,  and 
the  true  grounds  of  complaint  are  to  be  sought  in  the  explanation 
of  the   declaration  which   the  new   assignment  contains/     For 
some  purposes,  indeed,  the  matters  stated  in  the  plea,  and  not  dis- 
puted by  the  new  assignment,  will  be  noticed  by  the  court ;  as, 
for  instance,  if  to  an  action  for  assault  the  defendant  justifies, 
and  the  plaintiff  new  assigns  another  assault  on  a  different  occa- 
sion, the  latter  must  either  prove  both  assaults,  or  at  least  show 
that  the  one  of  which  he  complains  in  his  new  assignment  is  sub- 
stantially different  from  that  alleged  in  the  plea ;  and  so,  if  in  an 
action  of  trespass,  quare  clausum  fregit,  a  justification  is  pleaded 
under  a  right  of  way,  and  a  trespass  extra,  viam  is  new  assigned, 
the  plaintiff  must  prove  at  the  trial  that  such  last-named  trespass 
was  in  fact  committed;  but  in  both  these  cases  the  proof  is  re- 
quired, not  so  much  on  account  of  any  admission  assumed  to  have 
been  made  by  the  plaintiff,  as  because  it  directly  establishes  the 
issue  which  has  been  raised  by  the  new  assignment.^ 

The  rule  does  not  apply  to  cases  where  the  issue  found  being 
immaterial,  the  court  have  to  determine  whether  they  will  grant 
a  repleader,  or  will  allow  the  plaintiff  to  enter  up  judgment  non 
obstante  veredicto,  or  the  defendant  to  arrest  the  judgment'  Here 

^Norman  v.  Wescombe,  2  M.  &  W.  Oakley  v.  Davis,  16  East    86        See 

349    360    361;   Dand  v.  Kingscote.   6  Bolton  v.  Sherman,  2  M.  &  W.  399; 

M   &  W.'l97;   Brancker  v.  Molyneus,  Alston  v.  Mills,  9  Ad    &  El    248. 
1  M    &  G.  710;   Stephens  on  PI.  261.  ==  Gwynne    v.    Burnell,    6    Bmg.    N. 

*  Darby  v.  Smith,  2  M.  &  Rob.  184;  C.  479. 
36 


562  Evidence.  [Chap.  16 

a  distinction  prevails  between  an  express  admission  or  a  pleading 
in  confession  and  avoidance  on  the  one  hand,  and  an  implied  ad- 
mission from  traversing  other  facts  on  the  other,  the  latter  not 
being  regarded  bj  the  court  in  the  light  of  an  admission  at  all.* 
Thus  it  has  been  held  that  judgment  non  obstante  veredicto  can 
be  awarded  onlj  on  a  pleading  by  the  defendant  in  confession  and 
avoidance,  and  not  on  an  implied  confession  in  a* rejoinder  of  that 
part  of  a  replication  which  it  does  not  answer  f  and  this  seems  to 
lead  to  the  conclusion  that  judgment  for  the  plaintiff  cannot  be 
arrested  on  the  ground  that  the  traverse  of  a  part  of  a  plea  con- 
tains an  implied  confession  of  the  residue.  The  proper  course 
seems,  in  both  cases,  to  award  a  repleader.^  The  rule  in  equity 
with  respect  to  admissions  in  pleading  is  different  from  that  at 
common  law;  a  demurrer  being  regarded  by  courts  of  equity  as 
simply  raising  the  question  of  law,  without  any  admission  of  the 
truth  of  the  allegations  contained  in  the  bill — so  that  if  the  de- 
murrer be  overruled,  an  answer  may  still  be  put  in ;  and  a  plea 
being  merely  a  statement  of  circumstances  sufficient  to  show  that,, 
supposing  the  facts  to  be  true,  the  defendant  is  not  bound  to 
answer.  It  follows  that,  in  a  future  action  between  the  same 
parties,  neither  the  demurrer  nor  plea  can  be  received  in  evidence 
as  amounting  to  an  admission  of  the  facts  alleged  in  the  bill.^ 

Sec.  171.  Admissions  acted  upon  by  others  to  their  Prejudice. 

Where  an  admission  has  been  acted  upon  by  another,  the  per- 
son maMng  it  cannot  deny  it,  where  such  denial  would  operate 
prejudicially  to  the  person  who  has  acted  upon  it. 

This  rule  is  illustrated  in  numerous  ways.  Thus,  if  a  man  co- 
habits with  a  woman  and  treats  and  presents  her  to  the  world  as 
his  wife,  he  is  estopped  from  denying  that  she  is  his  wife  as 
against  those  who  have  furnished  her  with  goods  upon  the  faith  of 

*  Atkinson  v.  Davies,   11  M.   &  W.  Common  Pleas,  as  reported  in  Rand 
240.  V.    Vaughan,    1   Bing.   N.   C.   769;      1 

*  Gwynne  v.  Burnell,  G  Bing.  N.  C.  Scott,  670.  S.   C.     See,  also,   Pitts  or 
453;   1  Scott,  N.  R.  711,  S.  C.  Witts   v.   Polehampton.   3   Salk.   305; 

"Atkinson   v.   Davies,    11   M.   &   W.  1    Lord   Raj'm.   391,    S.   C. ;   Plummer 

236,    242,    where    the    court    explains  v.  Lee,  2  M.  &  W.  496;   5  Dowl.  755, 

and  adopts  the  rule  of  law  laid  down  S.  C:   Gordon  v.  Ellis,  2  DowL  &  L. 

in   G^vynn    v.   Burnell.        These   cases  308,   318,  319. 
overrule  the  dictum  of  the  Court  of  '  Tompkins  v.  Ashby,  M.  &  M.  32. 


Sec.  171.] 


Admissiojn^s. 


503 


the  relation  ;'■  and  a  woman  who  has  lived  with  a  man  under  such 
circumstances  is,  so  far  as  the  rights  of  third  persons  are  affected 
thereby,  estopped  from  denying  that  she  is  his  wife.^  But  where 
a  woman  is  really  married  to  a  man,  and  she  has  obtained  credit 
upon  a  declaration  by  her  that  she  is  a  single  woman,  it  is  held 
that  she  is  not  estopped  from  setting  up  her  marriage  in  de- 
fense.^ 


^  Munroe  v.  De  Chamaut,  4  Camp. 
215;  Watson  v.  Threlkeld,  2  Esp.  637. 

=  Divoll  V.  Leadbitter,  3  Pick. 
(Mass.)  220;  Mace  v.  Cadell,  1 
Camp.  233;  Battliewa  v.  Galindo,  4 
Bing.  613. 

'  GlenistcT  v.  Thynne,  Easter  T. 
1847,  Cateredge,  J. 

Where  a  person  knowingly  permits 
his  name  to  be  used  in  a  firm  under 
such  circumstances  of  publicity  as  to 
warrant  a  jury  in  finding  that  a  cred- 
itor knew  of  it  and  believed  him  to 
be  a  partner,  he  is  liable  to  such 
stranger  in  all  the  transactions  in 
which  he  gave  credit  to  the  firm  upon 
the  faith  of  his  being  a  partner. 
Dickinson  v.  Volpy,  10  B.  &  C.  122; 
Guidon  v.  Eobson,  2  Camp.  302. 

So,  if  a  party  has  taken  advantage 
of,  or  voluntarily  acted  under,  the 
bankrupt  or  insolvent  laws,  he  shall 
not  be  permitted,  as  against  parties 
to  the  proceedings,  to  deny  their  reg- 
ularity. Like  V.  Howe,  6  Esp.  20; 
Clarke  v.  Clarke,  6  id.  61;  Gouldie  v. 
Gunston,  4  Camp.  381;  Watson  v. 
Waee,  5  B.  &  C.  153,  explained  in 
Heane  v.  Rogers,  9  B.  &  C.  586,  587 ; 
Mercer  v.  Wise,  3  Esp.  219;  Harmar 
V.  Davis,  7  Taunt.  577;  Flower  v. 
Herbert,  2  Ves.  Sr.  326.  So,  if  a  per- 
son having  a  right  to  jjn  estate  per- 
mits or  encourages  a  purchaser  to 
buy  it  of  another,  the  purchaser  shall 
hold  it  against  the  person  who  has 
the  right,  3  Sugden  Ven.  &  Pur.  428; 
Sandys  v.  Hodgson,  10  Ad.  &  El.  476; 
and  the  same  doctrine  applies  to  per- 
sonal property.  Pickard  v.  Sears,  6 
Ad.  &  El.  469;  Gregg  v.  Wells.  10  Ad. 
&  El.  90;  Coles  v.  Bank  of  England, 
10  Ad.  &  El.  437.  Trespass  is  not 
maintainable  against  a  sheriflf's  of- 
ficer who  executes  process  against  a 
man  by  a  wrong  name,  either  by  tak- 
ing, his  person,  or  seizing   his  goods, 


if  before  the  process  be  sued  out.  he 
is  asked  his  name,  and  gives  such 
wrong  one;  as  to  a  ca.  sa.,  see  Mor- 
gans v.  Bridges,  1  B.  &  A.  650,  651; 
Magnay  v.  Fisher,  5  M.  &  G.  778,  787. 
This  last  case  overrules  Coote  v. 
Leighworth,  Sir  Fra.  Moore,  557,  and 
a  dictum  of  Lord  Hale  in  Thurbane, 
Hardres,  323.  As  to  a  fi.  fa.,  see 
Price  V.  Harwood,  3  Camp.  108; 
Fisher  v.  Magnay,  5  M.  &  G.  787; 
Reeves  v.  Slater,  7  B.  &  C.  486;  and 
if  a  party,  who  has  entered  into  a 
bond  by  a  wrong  name,  is  sued  in 
that  name,  he  cannot  cause  the  decla- 
ration to  be  amended  at  the  cost  of 
the  plaintifl",  Hycknian  v.  Shotbolt,  3 
Dyer,  279,  b.;  R.  v.  Wooldale,  6  Q. 
B.  566;  Mavby  v.  Sheplierd,  Cro.  Jac. 
640;  Williams  v.  Bryant,  5  M.  &  W. 
447,  and  he  is  estopped  from  denying 
that  the  name  in  which  he  was  sued 
was  his  real  name.  So,  although  a 
breach  of  covenant  can  in  no  case  be 
justified  by  a  parol  license  to  break 
it.  Doe  v.  Gladwin,  0  Q.  B.  953,  962; 
West  v.  Blakeway,  2  M.  &  G.  729,  yet 
a  forfeiture  occasioned  by  it  may 
sometimes  be  waived  by  the  conduct 
of  the  covenantee.  Thus  where  there 
is  a  covenant  to  insure  by  the  tenant, 
which  is  qualified  by  an  option  given 
to  the  landlord  to  insure  if  the  ten- 
ant makes  default,  and  to  add  the 
premiums  to  his  rent,  in  ejectment 
for  a  forfeiture  for  not  insuring,  the 
defendant  may  defeat  the  action  by 
proving  that  the  landlord  represented 
to  him  that  he  had  exercised  the 
power,  and  had  himself  insured  the 
premises.  Doe  v.  Sutton,  9  C.  &  P. 
706;  Doe  v.  Gladwin,  6  Q.  B.  962, 
963 ;  Doe  v.  Rowe,  2  C.  &  P.  246.  So 
a  tenant,  who  has  paid  rent,  and 
acted  as  such,  is  not  permitted  to  set 
up  a  superior  title  of  a  third  person 
against  his  lessor,  in  bar  of  an  eject- 


56i 


Evidence. 


[Cliap.  16 


This  rule  also  applies  to  acceptors  of  bills,  and  in  an  action 
against  the  acceptor  the  defendant  cannot  show  that  his  signature 
has  been  forged,  if  he  has  accredited  the  hill,  and  induced  the 
plaintiff  to  take  it,  by  saying  that  the  acceptance  was  his,  and  that 
the  hill  would  he  duly  paid} 

The  acceptance  of  a  bill  of  exchange  is  also;  treated  as  a  con- 
clusive admission,  as  against  the  acceptor,  of  the  signature  of  the 
drawer,^  and  of  his  capacity  to  draw  f  and  if  the  bill  is  payable  to 
the  order  of  the  drawer,  of  his  capacity  to  indorse  '^  and  if  it  is 


ment  brought  by  him ;  for  he  derived 
the  possession  from  him  as  his  ten- 
ant, and  will  not  be  allowed  to  repu- 
diate that  relation.  Tliis  doctrins 
applies  to  the  relation  of  bailor  and 
bailee,  and  principal  and  agent;  the 
rule  being  that  bailees  or  agents  can- 
not dispute  the  titles  of  their  bailors 
or  principals.  Dixon  v.  Hammond,  2 
B.  «&  A.  310,  313;  Story  on  Agencv, 
§  217;  Phillips  v.  Hall,  8  Wend.  (X. 
Y.)  610;  Drown  v.  Smith,  3  N.  H. 
299;  Eastman  \.  Tuttle,  1  Cow.  (N. 
Y.)  248;  M'Neil  v.  Philip,  1  M'Cord 
(S.  C),  392;  Chapman  v.  Searle,  3 
Pick.  (Mass.)  38,  44;  Jewett  \. 
Torry,  11  Mass.  219;  Lyman  v. 
Lvman,  11  id.  317;  Story  on  Bailm., 
§^102. 

Consequently,  if  a  warehouseman, 
wharfinger,  banker,  attorney,  agent, 
or  other  depositary  of  goods  or 
moneys,  has  once  acknowledged  the 
title  of  a  person  as  his  bailor  or  prin- 
cipal, and  has  agreed  to  hold  the 
goods  or  moneys  subject  to  his  order, 
or  to  sell  the  goods  and  to  account 
for  the  proceeds,  he  will  be  estopped 
from  setting  up  the  title  of  a  thirl 
person  to  the  same  goods  or  moneys, 
or  from  otherwise  defeating  the 
rights  of  his  bailor  or  principal, 
against  his  own  manifest  obligations 
to  him.  Gosling  v.  Birnie,  7  Bing. 
?39;  Stonard  v.  Dunkin,  2  Camp. 
344;  Harman  v.  Anderson,  2  id.  243; 
Hawes  v.  Watson,  2  B.  &  C.  540; 
Dixon  V.  Hammond.  2  B.  &  A.  310: 
Roberts  v.  Ogilvy,  9  Price,  269;  Far- 
ringdon  v.  Clerk,  3  Doug.  124;  Holl 
V.  Griffin,  10  Bing.  246;  Nickolson  v. 
Knowles,  5  Mad.  47 ;  Evans  v.  Nicho!, 
3  M.  &  G.  614.  But  an  exception  is 
made   where   the    bailor   or   principal 


has  obtained  the  goods  fraudulently 
or  tortiously  from  the  third  person, 
Harman  v.  Willcock,  9  Bing.  382,  n, 
if  the  defendant  shows  that  he  was 
unacquainted  with  the  circumstr.nces 
when  he  made  the  admission,  Gos- 
ling v.  Birnie,  7  Bing,  346,  and  that 
such  third  person  has  actually  made 
a  claim  to  the  goods  or  moneys  in 
question.  Betterley  v.  Reed,  4  Q.  J?. 
511,  517,  518.  The  bailor's  title  may 
be  impugned  if  the  circumstances  are 
such  as  to  show  that  he,  in  connec- 
tion with  some  third  person,  ha's 
practiced  a  fraud  on  the  bailee,  by 
representing  goods  to  belong  to  the 
bailor,  which,  in  fact,  were  the  prop- 
erty of  such  third  person,  if  addi- 
tional proof  is  given  that  the  defend- 
ant, in  consequence  of  the  fraudulent 
misi'epresentation,  has  sustained  any 
real  injury.  Scott  v.  Crawford,  4  M. 
&  G.  1031.  On  the  same  principle,  a 
vendor,  who  has  sold  goods  to  a  party 
as  a  sole  purchaser,  and  has  directed 
his  factors  to  weigh  them  c^er  to 
such  party,  and  to  enter  them  in  his 
name  in  their  books,  cannot,  after 
such  sale  and  transfer,  dispute  his 
title  as  sole  proprietor,  or  detain  the 
goods,  on  the  authority  of  a  third 
person,  who  claims  to  be  a  joint  pur- 
chaser. Kieran  v.  Sandars,  6  Ad.  & 
El.  515. 

*  Leach  v.  Buchanan,  4  Esp.  226; 
Sanderson  v.  Collman,  4  M.  &  G.  222. 

°  Sanderson  v.  Collman,  4  M.  &  G. 
209;   Bass  v.  Clive,  4  M.  &  S.   13. 

"  Id.     See  Haly  v.  Lane,  2  Atk.  182. 

'Taylor  v.  Croker,  4  Esp.  187; 
Pitt  v.  Chappelow,  8  M.  &  W.  616; 
Drayton  v.  Dale,  2  B.  &  C.  293; 
Sanderson  v.  Collman,  4  M.  &  G.  218. 


Sec.  171.] 


Admissions. 


565 


drawn  by  procuration,  of  the  authority  of  the  agent  to  draw  in 
the  name  of  the  principal  f  and  it  is  immaterial  whether  the  bill 
is  drawn  before  or  after  the  acceptance.^  There  is,  however,  gen- 
erally no  such  admission  on  the  part  of  the  acceptor,  of  the  gen- 
uineness of  the  signature  of  the  payee,  although  he  is  the  same 
party  as  the  drawer,^"  or  of  any  other  indorser ;  and  tliis,  although 
at  the  time  of  the  acceptance,  the  indorsements  were  on  the  bill^^ 
Upon  the  same  principle  an  indorsement  by  the  payee  of  a 
promissory  note  is  a  conclusive  admission  of  the  handwriting  of 
the  maker,^^  but  not  of  any  preceding  indorser.^^ 


"  Robinson  v.  Yarrow,  7  Taunt.  455 ; 
Jones  V.  Tumour,  4  C.  &  P.  204. 

"Schultz  V.  Astley,  2  Bing.  N.  C. 
544. 

^"Macferson  v.  Thoytes,  Pea.  20; 
Bosanquet  v,  Anderson,  6  Esp.  44; 
Cooper  V.  Mever,  10  B.  &  C.  471. 

"Smith  V. "Chester,   1  T.  R.  654. 

Neither  does  the  acceptance  admit 
that  an  agent  who  has  drawn  a  bill 
by  procuration,  payable  to  the  order 
of  the  principal,  has  authority  to  in- 
dorse the  same.     Robinson  v.  Yarrow, 
7    Taunt.   455;      Beeman  v.   Duck,   11 
M.  &  W.  255.     So,  if  on  a  bill  pay- 
able to  the   order  of  the  drawer  the 
name  of  a  real  person  as  drawer  and 
indorser  is  forged,  it  seems  that  the 
mere  acceptance  of  the  bill,  in   igno- 
rance   of   the    forgery,    will   not   pre- 
clude the  acceptor  from  denying  the 
genuineness      of      the      indorsement, 
though  it  be  in  the  same  handwriting 
as  the  drawing,  which  he  is  bound  to 
admit;   Beeman  v.  Duck,  11  M.  &  W. 
251,  255;     but  if  the  acceptor,  with 
knoivledge    of   the    forgery,   puts    the 
bill    in    circulation,    he    will    be    es- 
topped from  disputing  the  validity  of 
the  indorsement  equally  with  that  of  • 
the  drawing,  and  the  same  rule  pro- 
vails  if  the  bill  is  drawn  in  a  wholly 
fictitious  name,  and  the  handwriting 
of   the    indorsement    is    the    same    as 
that  of  the  drawing,  and  the  acceptor 
will  be  estopped  from  denying  it,  be- 
cause   he    admits    that    the    bill    is 
drawn  by  somebody,  that  is,  by  the 
person    who    indorses    in    the    same 
handwriting,    and   the    fair    construc- 
tion to  be  put  on  his  undertaking  is, 
that  he  will  pay  to  the  signature  of 
the  same  person  who  signed  for  the 


drawer.  Cooper  v.  Meyer,  10  B.  & 
C.  468,  471;  Beeman  v.  Duck,  11  M. 
&  W.  253-256. 

The  reasons  usually  assigned  for 
these  distinctions  are,  that  as  the  ac- 
ceptor is  only  presumed  to  be  ac- 
quainted with  the  handwriting  of  the 
drawer,  it  is  sufficient  if  he  ascer- 
tains that  his  signature  is  genuine, 
and  that  he  is  not  bound  to  look  at 
the  back  of  the  bill  at  all;  and  that 
if  he  was,  he  could  not  be  supposed 
to  know  the  handwriting  of  indorsers 
who  would  probably  be  strangers  to 
him ;  and  that  a  different  rule  would 
raise  nice  questions  of  fact  in  every 
case,  as  to  whether  the  bill  was  in- 
dorsed before  or  after  acceptance,  and 
would,  consequently,  embarrass  the 
circuhition  of  negotiable  securities, 
by  rendering  the  position  of  accept- 
ors hazardous  and  undefined.  See 
Story  on  Bills  of  Ex.,  §  263;  Robin- 
son V.  Yarrow,  7  Taunt.  458;  Smith 
V  Chester,  1  T.  R.  654;  Canal  Bk.  v. 
Bk.  of  Albany,   1   Hill    (N.  Y.),  287. 

"Free  v.  Hawkins,  Holt,  N.  P.  R. 
550.  „ 

"Armani  v.  Castrique,  13  M.  &  W. 
443.  But  see  Critchlow  v.  Parry,  2 
Camp.   182. 

Although  an  indorsee  who  sues  an 
indorser  may  be  saved  the  necessity 
of  proving  the  prior  indorsements,  by 
alleging  in  the  declaration  that  the 
defendant  indorsed  a  bill  purporting 
to  be  drawn  by  the  drawer,  and  in- 
dorsed by  him  to  the  defendant,  yet, 
if  he  chooses  to  aver  positively  that 
the  bill  was  drawn  by  a  certain  per- 
son, it  seems  that  the  defendant  is 
still  competent  in  law  to  deny  that 
fact,   though   his   indorsement   is   co- 


566 


EviDEXCE. 


[Chap.  16 


But  admissions,  which  have  not  been  acted  upon,  or  by  which 
the  situation  of  the  opposite  party  has  not  been  prejydiced  or 
altered,  although  receivable  in  evidence  against  the  parties  mak- 
ing them,  are  not  conclusive." 

In  some  few  cases  connected  with  the  administration  of  public 


gent,  and  almost  irresistible,  evidence 
of  its  truth.  Armani  v.  Castrique, 
13  M.  &  \V.  449,  450.  In  those  cases 
where  the  admission  is  conclusive,  it 
may  eitlier  be  replied  by  way  of  es- 
toppel in  pais,  Sanderson  v.  Collmaii, 
may  either  be  replied  to  by  way  of  es- 
toppel appears  on  the  pleadings,  the 
party  may  avail  himself  of  it  on  de- 
murrer. Armani  v.  Castrique.  13  M. 
&  \V.  451.  It  makes  no  difference  in 
the  operation  of  this  rule,  whether 
tl)e  admission  was  true  or  false,  or 
whether  it  proceeded  from  mistake  or 
design;  it  being  the  fact  that  it  has 
been  aetecl  upon  wliich  renders  it  con- 
clusive. Doe  V.  Lambly,  2  Esp.  635, 
G36;  Morgans  v.  Bridges,  1  B.  &  A. 
650;  Hall  v.  White,  3  C.  &  P.  136; 
Stables  v.  Elev.  1  C.  &  P.  014;  How- 
ard V.  Tucker,' 1  B.  &  Ad.  712;  Salera 
v.  Williams,  8  Wend.  (X.  Y.)  483; 
9  id.  147  ;  Chapman  v.  Searle,  3  Pick. 
(Mass.)  38,  44;  Den  v.  Oliver,  3 
Hawks  (N.  C),  479;  Salem  Bk.  v. 
Gloucester  Bk.,  17  Mass.  1 ;  Simmons 
v.  Bradford,  15  Mass.  82;  Eaton  v. 
Ogier,  2  Me.  46. 

"  Thus,  if  A.  contracts  to  sell  tim- 
ber to  B.,  and  gives  him  a  delivery 
order,  he  may  still,  on  B.'s  bank- 
ruptcy, meet  an  action  of  trover 
brought  by  B.'s  assignees,  by  showing 
that  the  delivery  order  was  invalid, 
and  therefore  did  not  amount  to  a 
constructive  delivery  of  the  goods, 
provided  B.  has  neither  paid  for 
them,  nor  sold  them  to  a  third  party. 
Lackington  v.  Atherton,  7  ]M.  &  G. 
'360.  So,  if  the  question  merely  re- 
lates to  the  admissibility  of  a  wit- 
ness, whom  the  defendant  has  ac- 
knowledged to  be  his  wife.  Batthews 
V.  Galindo,  3  C.  &  P.  238,  or  partner, 
such  acknowledgment  will  not  pre- 
clude him  from  showing  that  in  fact 
the  witness  is  not  incompetent. 
Brockbank  v.  Anderson,  7  M.  &  G. 
295;  Barker  v.  Stubbs,  1  M.  &  G.  44; 
Russell    V.    Blake,    2    M.    &    G.    374; 


Poole  V.  Palmer,  9  M.  &  W.  71;  Kell 
V.  Nainby,  10  B.  &  C.  20;  Glossop  v. 
Colman,  1  Stark.  25;  Parsons  v. 
Crosby,  5  Esp.  199;  Ward  v.  Haydon, 
2  Esp.  552.  So,  in  an  action  for  the 
escape  of  a  prisoner  arrested  at  the 
suit  of  the  plaintiff,  the  defendant, 
by  having  received  the  prisoner 
into  custody,  is  not  estopped  from 
disputing  the  legality  of  the  custody. 
Contant  v.  Chapman,  2  Q.  B.  771. 
Neither  will  the  court  treat  as  con- 
clusive evidence  the  admission  that 
his  trade  was  a  nuisance,  by  one  in- 
dicted for  setting  it  up  in  another 
place;  R.  v.  Neville,  Pea.  91;  or  the 
admission  by  the  defendant,  in  an 
action  for  adultery,  that  the  "  tcter- 
rima  causa"  was  the  wife  of  the 
plaintiff.  Morris  v.  Miller,  4  Burr, 
2057 ;  Rigg  v.  Curgenven,  2  Wils.  399. 
So,  a  creditor  is  not  estopped  from 
bringing  an  action  against  a  sheriff 
for  a  false  return,  by  accepting  the 
amount  levied  on  account,  and  to- 
wards the  satisfaction,  of  the  debt 
mentioned  in  the  writ;  Holmes  v. 
Clifton,  10  Ad.  &  El.  673.  overruling 
Beynon  v.  Garrat,  1  C.  &  P.  154; 
and  where  a  person  brought  an  ac 
tion  of  trover  tor  a  dog,  he  was  held 
not  to  be  precluded  from  proving  his 
title  to  it,  though  he  had  previously 
authorized  a  third  party,  against 
whom  the  defendant  had  brought  a 
similar  action,  to  deliver  it  to  the  de- 
fendant, in  the  place  of  paying  50/., 
which  w^as  the  alternative  directed  by 
the  verdict;  the  third  person  having, 
at  the  time  of  delivery,  demanded 
back  the  dog,  on  behalf  of  the  plain- 
tiff, as  his  property.  In  these,  and 
similar  cases,  no  wrong  is  done  to 
the  other  party  by  receiving  any  legal 
evidence  to  show  that  the  admission 
was  erroneous,  and  by  leaving  the 
whole  evidence,  including  the  admis- 
sion, to  be  weighed  by  the  jurv.  San- 
dys V.  Hodgson,   10  Ad.  &  EL  472. 


Sec.  172.]  Admissions.  567 

justice,  and  of  government,  the  admission  is  held  conclusive,  on 
grounds  of  ^hlic  policy.  Thus,  in  an  action  for  penalties  for 
election  bribery,  it  was  held  that  a  man,  who  had  given  money  to 
another  for  his  vote,  should  not  be  admitted  to  say  that  such  other 
person  had  no  right  to  vote.^^  So,  where  the  owners  of  a  stage 
coach  took  up  more  passengers  than  were  allowed  by  statute,  and 
an  injury  was  laid  as  having  arisen  from  overloading,  their  con- 
duet  was  held  to  be  conclusive  evidence  that  the  accident  was 
occasioned  by  the  cause  assigiied.^^  So,  one  who  has  officiously 
intermeddled  with  the  goods  of  another  recently  deceased,  is  in 
favor  of  creditors,  estopped  to  deny  that  he  is  executor."  And 
if  an  executrix  treats  the  goods  of  her  testator  as  the  property  of 
her  husband,  she  will  not  be  allowed  to  object  to  their  being  taken 
in  execution  for  her  husband's  debt.^^ 

Sec.  172.  Admissions  under  Oath  in  Deeds,  Etc. 

The  mere  fact  that  an  admission  was  made  under  oath  does 
not  of  itself  render  it  conclusive  against  the  party,  but  it  adds 
greatly  to  the  weight  of  the  testimony,  throwing  upon  the  party 
making  it  the  burden  of  showing  that  it  was  a  case  of  clear  and 
innocent  mistake.^ 

Admissions  m  deeds,  as  bet^veen  the  parties  and  their  privies, 
are  generally  regarded  as  estoppels,  if  pro^^erly  pleaded;^  and 
when  not  technically  so,  they  are  entitled  to  great  weight,  from 
the  solemnity  of  their  nature.^  But  when  offered  in  evidence  by 
a  stranger,  the  adverse  party  may  repel  their  effect  in  the  same 
manner  as  though  they  were  only  parol  admissions.* 

"Combe    v.    Pitt,    3    Burr.     1580,  common  law   against  the  party,  but 

1590  •   1  Wm.  Bl.  524.  S.  C. ;  Rigg  v.  do  not  seem  to  be  held  strictly  con- 

Curgenven,  2  Wils.  395.  elusive,     merely     because     they     are 

"Israel  v.  Clark,  4  Esp.  259,  per  sworn  to.  B.  N.  P.  236,  237;  Cam- 
Lord  Kenyon,  recognized  by  Lord  eron  v.  Lightfoot,  2  W.  Bl.  1190; 
Ellenborough.  Grant  v.  Jackson,  Pea.  203;    Studdy 

"Reade's  Case,   5   Co.  33,   34;  Tol-  v.    Sanders,    2    D.    &    R.    347;       De 

ler's  Law  of  Exrs.,  37-41;    1  Williams  Whelpdale  v.  Milburn,  5  Price,  485 
Ex.  &  Ad.,  192,  193.  '  Fishmongers'   Co.   v.   Robertson.   5 

"Quick  V.  Staines,  1   B.  &  P.   293.  M.  &  G.   193;   Bowman  v.  Rostron,  2 

See  Fenwick  v.  Laycock,  2  Q.  B.  108.  Ad.  &  El.  295,  n. 

*  R  V.  Clarke,  8  T.  R.  220 ;  Thornes  '  Doe  v.  Stone,  3  C.  B.  176. 
V.  White,   1  Tyr.  &  Gr.  110;  Doe  v.  *R.    v.    Neville,    Pea.    91;     Wood- 
Steel,    3  '  Camp.     115.       Answers    in  ward  v.  Larking,  3  Esp.  286;   Mayor 
Chancery    are    always    admissible    at  of  Carlisle  v.  Blamire,  8  East,  487. 


568  Evidence.  "  [Chap.  l(y 

Receipts  or  other  mere  acknowledgments,  given  for  goods  or 
money,  whether  on  separate  papers,^  or  indorsed  on  deeds,^  or  on 
negotiable  securities;'  the  adjustment  of  a  loss, on  a  policy  of  in- 
surance, made  without  full  knowledge  of  all  the  circumstances, 
or  under  a  mistake  of  law  or  fact,  or  under  any  other  invalidating 
circumstances;^  and  accounts  rendered,  such  as  an  attorney's 
bill,^  and  the  like,  do  not  estop  the  party  making  them  from  deny- 
ing the  facts  stated  therein ;  and  a  bill  in  chancery,  if  admissible 
at  all  against  the  plaintiff  in  proof  of  the  admissions  it  contains, 
is  the  feeblest  possible  evidence,  the  facts  stated  therein  being 
frequently  little  more  than  the  mere  suggestions  of  counsel.^*' 

Sec.  173.  Admissions  by  Corporate  Officers  and  Agents. — For 

other  recent  cases  relating  to  amdissions  by  corporate  agents, 
see  §  157,  ante. 

The  declarations  or  admissions  of  individual  members  of  a 
corporation  are  not  admissible  against  the  corporation,  except  as 
to  matters  in  which  they  have  been  authorized  to  act  for  it,^  nor 
are  the  admissions  of  directors  or  other  officers  of  a  corporation, 
not  forming  a  part  of  an  official  act,  admissible  to  establish  an 
antecedent  fact,^  unless  some  authority  beyond  the  mere  fact  of 

"Skaife  v.  Jackson,  3  B.  &  C.  421;  '*B.    N.    P.    235;      2    Ph.    Ev.    2S; 

Farrar   v.    Hutchinson,   9   Ad.   &   El.  Doe  v.  Sybourn,  7  T.  R.  3. 

641;   Wallace  v.  Kelsall,  7  M.  &  W.  ^Statements   by  director   of   corpo- 

273.       These  cases  overrule  Alner  v.  ration  made  en  route  from  one  place 

George,  1  Camp.  392 ;   Harden  v.  Gor-  to  another  while  not  directly  engaged 

don,  2  Mason   (U.  S.),  541,  561;   Ful-  in    the    business    of    the    corporation 

ler   V.   Crittenden,   9   Conn.   401;   En-  held    not    admissible.       Allington    (4 

sign   V.   Webster,    1   Johns.   Cas.    (N.  Curtis  Manufacturing  Co.  v.   Detroit 
Y.)    145;   Putnam  v.  Lewis,  8  Johns.  *    Reduction  Co.,   132  Mich.  427,   95  N, 

(N.   Y.)    389;      Stackpole   v.   Arnold.  W.   562,   565.     Statements   of   treasu- 

11  Mass.  27;   Tucker  v.  Maxwell,   11  rer      of      corporation     not      evidence 

id.     143;      Williamson    v.     Scott,     17  against  it  when   made  when   he   was 

Mass.  249.  not  acting  for  it.     Stanton  v.  Baird 

•Straton  v.  Rastall,   2   T.    R.   366;  Lumber  Co.,  132  Ala.  635,  32  So.  299. 

Lampon  v.  Corke,  5  B.  &  A.  611.  Statements    by   local    officers    of   Mu- 

^  Graves  v.  Key,  3  B.  &  Ad.  313.  tual       Benefit       Society       admissible 

•  Reyner    v.    Hall,    7    Taunt.    725 ;  against   society   within    the   scope    cf 

Shepherd  v.   Chewter,   1    Camp.   274;  agency.        Patterson  v.    United   Arti- 

Adanis    v.    Sanders,    M.    &    M.    373;  sans,    43    Ore.    333,    72    Pac.     1095; 

Christian  v.  Coombe,  2  Esp.  489.  Turnpike  Co.  v.  Thorp,  13  Conn.  173 1 

•Loveridge  v.   Botham,    1    B.   &   P.  Bank  v.  Hart,  3  Day    (Conn.),  491. 

49;   Bacon   v.  Chesney,   1   Stark.    192,  =  Bank     v.      Davies,     6     W.    &    S. 

193,  n.  6;  Dawson  v.  Remnant,  6  Esp.  (Penn.)   285;   Pemigewassett  Bank  v. 

24;  Taylor's  Ev.,  567,  577.  Rogers,  18  N.  H.  255. 


Sec.  173.] 


Admissions. 


5m 


his  being  an  officer  of  the  corporation  is  shown.^    But  admissions 


*  Law  V.  Conn.,  etc.,  R.  R.  Co.,  45 
N.  H.  370;  46  id.  284;  Robinson  v. 
Lane,  19  Ga.  337. 

*  Sewanee  Mining  Co.  v.  McMahon, 
1  Head.  (Tenn.)  582;  Chicago,  etc., 
R.  R.  Co.  V.  Coleman,  18  111.  297; 
Franklin  Bank  v.  Cooper,  36  Me.  180. 

Where  a  demand  was  made  upon 
the  secretary  of  a  railroad  company 
for  an  original  or  certified  copy  of  a 
subscription  paper,  proved  to  have 
been  in  possession  of  the  company,  it 
was  held  that,  the  presumption  be- 
ing that  he  was  the  custodian  of  such 
papers,  his  answer  that  it  was  lost 
was  admissible  as  competent  evidence 
of  this  fact  against  his  employer. 
Indianapolis,  etc.,  R.  R.  Co.  v.  Jewett, 
IG  Ind.  273.  But  where  the  cashier, 
upon  inquiry  made  by  a  surety  on  .a 
note  in  the  bank,  the  day  after  its 
maturity,  informed  that  it  had  been 
paid,  and  the  surety  conse(|uently  rc- 
Hnquished  property  which  he  held  for 
his  indemnity,  such  answer  of  the 
cashier  was  held  not  admissil)le  in 
evidence,  as  not  within  the  scope  of 
his  authority  or  duty.  Bank  v. 
Steward,  37  Me.  519. 

In  a  Massachusetts  case  the  de- 
fendant gave  his  bond  to  the  plaintiff 
for  a  certain  sum,  in  consideration  of 
the  assignment  of  a  patent,  the  plain- 
tiff representing  that  a  certain  com- 
pany had  ■  purchased  the  right  to  use 
it,  and  were  to  pay  a  certain  sum 
therefor,  and  that  its  validity  had 
been  established  in  a  court  of  law  in 
a  certain  place.  It  was  held  in  an 
action  upon  a  promissory  note,  given 
in  exchange  for  the  bond,  that  it  was 
not  competent  for  the  defendant  to 
give  in  evidence  the  '  declarations  of 
the  officers  of  the  company  when  re- 
fusing to  pay  the  sum  represented  to 
be  due  from  them,  as  to  the  >  reasons 
for  such  refusal ;  nor  to  prove  that 
the  plaintiff  had  ascertained  by  in- 
quiry the  untruth  of  his  statement 
that  the  validity  of  the  patent  had 
been  established  in  a  court  of  law. 
McMahon  v.  Tyng,  14  Allen  (Mass.), 
167. 

In  a  New  Hampshire  case  H.  ap- 
plied to  the  cashier  of  a  bank  for  de- 
lay   of    payment    of    a    note    he    had 


given  the  bank,  and  his  proposition, 
in  writing,  was  submitted  to  the  di- 
rectors. The  cashier  informed  H. 
that  his  proposal  was  accepted,  an<i 
the  delay  was  given.  It  was  held 
that  the  daclarations  of  the  cashier 
to  H.  were  not  evidence  of  what  the 
terms  of  the  contract  were.  Bank  of 
Grafton  v.  Woodward,  5  N.  H.  301. 
In  an  action  by  a  corporation  to  re- 
cover damages  for  the  conversion  of 
property  conveyed  to  it  by  P.  and  B., 
its  officers  and  principal  stockhold- 
ers, and  taken  by  the  defendant  on 
execution  against  P.  and  B.,  the  issue 
was  as  to  the  good  faith  of  the  trans- 
fer to  the  corporation.  It  was  held 
that  evidence  was  admissible  as  to 
the  acts  and  declarations  of  P.  and 
B.,  tending  to  show  that  they  were 
using  the  property  after  the  transfer 
as  if  it  wore  their  own.  Persse,  etc.. 
Paper  Works  v.  Willett,  1  Robt.  (N. 
Y. )  131.  The  declarations  of  a  per- 
son made  while  obtaining  the  promis- 
sory note  of  another,  to  be  used  as  a 
part  of  his  contribution  towards  the 
capital  stock  of  an  insurance  com- 
pany, are  not  admissible  against  the 
company,  unless  it  is  shown  that  the 
person  so  obtaining  the  note  was  tlie 
agent  of  the  company.  Holbrook  v. 
Wilson,  4  Bosw.  (N.  Y.)  64.  A 
statement  made  to  a  bank  officer  oy 
a  person  applying  at  a  bank  for  the 
discount  of  a  note,  of  the  intended 
use  of  the  money,  and  by  that  officer 
communicated  to  the  directors,  may 
be  evidence  to  affect  the  bank  with 
notice  of  such  use;  but  is  not  evi- 
dence from  which  a  jury  would  be 
authorized  to  find  an  agreement  be- 
tween that  person  and  the  bank,  that 
the  money  should  be  used  in  that 
way.  Merchants'  Bank  v.  Spalding, 
9  X.  Y.  57.  Proof  of  an  admission 
by  the  secretary  of  an  insurance  com- 
pany, made  the  morning  after  a  loss 
had  occurred,  that  the  property  de- 
stroyed was  insured  at  the  time  of 
the  fire,  is  not  competent  as  principal 
evidence,  being  the  declaration  of  a 
third  person,  who,  though  an  agent 
of  the  defendant,  was  not  then  en- 
gaged in  the  performance  of  any  act 
relating  to  his  agency,  so  as  to  bring 


670 


Evidence. 


[Chap.  16 


or  statements  made  by  a  corporate  ofl&cer  -within  the  line  of  his 
authority,  or  in  execution  of  his  authority  as  such,  are  admissible,* 


the  case  witiiin  the  rule  which  al- 
lows the  declaration  of  an  agent  as 
part  of  the  res  gestae.  Neither  is 
such  evidence  competent,  for  the  pur- 
pose of  disproving  the  agent's  denial 
of  the  alleged  admission.  First  Bap- 
tist Church  V.  Brooklyn,  etc.,  Ins. 
Co.,  28  N.  Y.  153. 

A  foreman  of  a  corporation  which 
has  ceased  business  cannot  bind  the 
stockholders  personally  by  his  settle- 
ment made  with  the  operatives,  and 
therefore  evidence  of  such  settlement 
is  inadmissible,  in  a  suit  against 
them  to  recover  for  services  rendered 
to  the  corporation.  Strong  v. 
Wheaton,  38  Barb.  (IST.  Y.)  616.  The 
declarations  of  the  cashier  of  a  bank, 
of  his  knowledge  that  certain  stock 
which  stood  upon  the  books  of  the 
bank  in  the  name  of  a  certain  indi- 
vidual was  a  trust  fund  invested  for 
the  benefit  of  others,  may  be  given  in 
evidence  under  certain  circumstances, 
to  charge  the  bank  with  knowl- 
edge of  the  fact.  Harrisburgh  Bank 
V.  Tyler,  3  W.  &  S.  (Penn.)  373.  The 
president  of  a  railroad  company  suf- 
ficiently represents  his  corporation 
to  make  his  admissions  evidence 
against  the  companv,  Charleston, 
etc.,  R.  R.  Co.  V.  Blake,  12  Rich.  (S. 
C.)  634.  So  a  declaration  of  the  en- 
gineer just  before  or  after  an  acci- 
dent by  running  over  a  cow  that  "  his 
engine  should  make  her  time  or  he'd 
blow  her  to  hell,"  is  admissible.  Rail- 
road Co.  V.  Messino,  1  Sneed  ( Tenn. ) , 
220.     But  evidence  of  the  statements 


of  an  engineer  of  a  railroad  corpo- 
ration, as  to  matter  in  relation  to 
which  he  is  not  shown  to  be  their 
agent  in  some  way,  is  inadmissible. 
Baltimore  &  Ohio  R.  R.  Co.  v.  Galla- 
hue,   12  Gratt.    (Va.)    655. 

Where  a  passenger  applied  to  tlie 
agent  of  a  railroad  company  for  a 
ticket,  who  gave  him  a  certificate 
that  the  tickets  "  were  all  out," 
which  he  showed  to  the  conductor, 
the  testimony  of  the  agent  is  compe- 
tent to  show  that  the  passenger  ap- 
plied for  a  ticket  and  the  certificate 
to  show  that  the  conductor  knew  that 
the  fault  of  the  passenger's  not  hav- 
ing a  ticket,  lay  with  the  company 
and  not  with  the  passenger.  St. 
Louis,  etc.,  R.  R.  Co.  v.  Dally,  19  111. 
353.  Ollicers  of  a  municipal  corpo- 
ration can  only  bind  the  corporation 
by  admissions  relating  to  matters 
which  come  within  the  scope  of  their 
official  duty.  Thus  where  notice  of  a 
certain  claim  upon  a  town  or  city  is 
required  to  be  given  to  a  certain  of- 
ficer, his  admission  that  such  notice 
has  been  given  is  clearly  admissible, 
but  his  admission  that  the  claim  is 
a  valid  one  is  not  admissible.  Fol- 
som  V.  Underbill,  36  Vt.  580.  Nor 
can  his  admission  be  used  as  to  a 
matter  which  legally  should  be  sub- 
mitted to  the  voters  of  the  town  or 
city,  Morrell  v.  Dixfield,  30  Me.  157, 
nor  to  defeat  the  title  of  the  corpo- 
ration to  lands.  Walker  v.  Duns- 
paugh,  20  N.  Y.  170. 


CHAPTER  XVII. 

JUDICIAL    NOTICE. 

Section  174.  In  general. 

175.  Public   and   private   statutes. 

176.  Currency,  customs,  history,  political  and  governmental  matters. 

177.  Matters  of  common  knowledge. 

178.  Statutes  and  common   law  of  other  states. 

179.  As  to  judicial  records. 

180.  Miscellaneous   matters. 

181.  Pleading    of    statutes    relied    on. 

Sec.  174.  In  General. 

There  are  certain  matters  of  which  courts  will  take  judicial 
notice,  without  putting  parties  to  the  trouble  and  expense  of  prov- 
ing them.  But  these  matters  are  comparatively  few,  and  no  pre- 
cise rules  can  be  given  relative  thereto.  The  courts  in  this 
country  are  much  more  liberal  in  this  respect  than  the  courts  of 
England,  but  in  this  country  even,  the  courts  do  not  overstep  the 
ordinary  limits  of  common  sense  and  sound  discretion  in  the 
exercise  of  this  power;  but  there  are  matters  so  fixed,  so  certain, 
so  notorious,  so  essentially  a  part  of  the  ordinary  and  usual  ex- 
perience of  mankind,  that  to  require  proof  in  reference  to  their 
existence  or  operations  would  be  over  nice,  and  productive  of  use- 
less expense  and  hardship  upon  parties. 

In  the  ascertainment  of  any  facts  of  which  they  are  bound  to 
take  notice,  as  in  the  decision  of  matters  of  law  which  it  is  their 
office  to  know,  the  judges  may  refresh  their  memory  and  inform 
their  conscience  from  such  sources  as  they  deem  most  trustworthy. 
Upon  the  question  of  the  existence  of  a  public  statute,  or  of  the 
date  when  it  took  effect,  they  may  consult  the  original  roll  or  other 
official  records.  As  to  international  affairs,  such  as  the  recogni- 
tion of  a  foreign  government,  or  of  the  diplomatic  character  of  a 
person  claiming  to  be  its  representative,  they  may  inquire  of  the 
foreign  office  or  the  Department  of  State.^  The  failure  or  refusal  of 
the  trial  court  to  take  judicial  notice  does  not  prevent  the  appel- 

'  Jones  V.  United  States,  137  U.  S.       effect  see  Rogers  v.    Cady,    104   Cal. 
202,   216,    11    S.    Ct.    80.       To    same       288,  38  P.  81,  43  Am.  St.  Rep.  100.   ' 

(571) 


572  Evidence.  [Chap.  17 

late  court  from  taking  such  notice.^     The  State  legislature  may 
enact  that  the  courts  may  take  judicial  notice  of  a  certain  statute.* 


Sec.  175.  Public  and  Private  Statutes. 

Our  courts  will  take  judicial  notice,  without  proof,  of  all  public 
acts  of  the  State ;  but  private  acts,  or  acts  that  are  confined  in  their 
operation  to  a  few  persons,  and  have  no  general  application  or 
effect,  must,  if  relied  upon,  be  set  forth  in  the  pleadings,  and 
proved  upon  trial,  the  same  as  any  other  fact.^ 

Acts  which  affect  public  rights,  as  acts  giving  authority  to  in- 
dividuals or  corporations  to  make  erections  or  improvements  in 
public  navigable  streams  which  affect  the  rights  of  navigation, 
fishery,  or  any  common  public  right,  will  be  regarded  as  public 
acts,  although  not  specially  made  so  in  the  act  itself,  and  although 
its  benefits  or  advantages  are  confined  to  a  few  persons.^ 

It  would  seem,  however,  that  this  rule  must  be  restricted  to 
cases  where  public  rights  are  measurably  affected,  and  where,  ex- 
cept for  the  "act,"  the  acts  done  in  pursuance  of  it  would  be  a 
public  nuisance;  that  is,  it  must  be  such  an  invasion  of  public 
and  common  rights  as  to  put  every  person  upon  inquiry  as  to  the 
legality  or  otherwise  of  the  act.  In  order  to  make  an  "act"  a 
"public  act"  within  the  rule,  it  is  not  necessary  that  it  should  be 
applicable  equally  to  the  whole  State ;  but  any  act  which,  although 
confined  to  a  particular  district,  or  part  of  the  State,  even  though 
confined  to  a  single  township,  or  part  of  a  township,  if  it  applies 
equally  to  such  district,  part  of  the  State  or  township, 
is  a  "public  act,"  of  which  courts  will  take  judicial  notice  without 
proof.  So  a  certain  statute  authorizing  condemnation  of  prop- 
erty in  which  the  State  is  interested  was  held  so  far  public  that 
the  court  must  take  judicial  notice  of  it.^  And  the  court  took 
judicial  notice  of  a  stock  statute  applying  only  to  a  certain  county 
in  the  State,  though  local  in  nature,  as  it  extends  to  all  persons 
who  may  come  within  the  territory  described.*     The  court  will 

'Rogers  v.   Cady,   104  Cal.   288,   38  454;   Covington   Draw    Bridge    Co.   v. 

P.   81,  43   Am.    St.   Rep.    100.        See,  Shepard,  20  How.    (U.  S.)    227. 

also,  Hunter  v.  New  York,  etc.,  R.  R.  ^  Hammond  v.  Inloes,  4  Md.   138. 

Co.,  116  N.  Y.  615.  'Chesapeake    &    O.    Canal    Co.    v. 

'Case  V.  Kelly,    133   U.    S.   21,  27,  Western    Maryland    R.    Co.,    99    Md. 

10  S.  Ct.  216.      (Act  incorporating  a  570,  58  A.  34. 

railroad.)  *  Davis   v.    State    (Ala.,    1904),   37 

^  Bowie  V.  City  of  Kansas,  51  Mo.  So.  454. 


Sec.  175.] 


Judicial  Notice. 


573 


take  judicial  notice  of  the  date  when  a  public  law  went  into  effect 
under  proclamation  of  the  governor,  and  of  the  dates  of  the  terms 
of  the  State  courts.^  The  passage  of  a  public  statute  during  the 
pendency  of  a  suit  will  be  judicially  noticed  without  a  formal 
supplemental  plea.® 


"Moss  V.  Sugar  Eidge  Tip,  161  Ind, 
417,  68  N.  E.  R.  896. 

"Vance  v.  Rankin,  194  111.  G2.5,  62 
N.  E.  807,  88  Am.  St.  Rep.  173. 

Thus  it  has  been  held  that  a  special 
act  of  the  legislature,  extending  the 
power  of  a  single  public  officer,  as 
an  act  extending  the  jurisdiction  of 
a  certain  town  constable  throughout 
the  county  or  State,  is  such  an  act 
as  courts  are  bound  to  notice  with- 
out proof.  Bixler  v.  Parker,  3  Bush 
(Ky.),  160;  Levy  v.  State,  6  Ind. 
281.  So  of  an  act  under  which  a 
person  claims  the  office  of  a  juage  of 
a  particular  court.  Clark  v.  Com.. 
29  Penn.  St.  129.  So  of  an  act  for 
the  protection  of  fish  in  a  certain 
river.  Burnham  v.  Webster,  5  Mass. 
206.  So  of  an  act  providing  for  the 
survey  of  certain  lands  in  a  particu- 
lar county,  and  providing  that  no 
sales  of  any  portion  of  such  lands 
should  be  made  unless  surveyed  and 
marked.  Pierce  v.  Kimball,  9  Mo. 
54.  But  contra,  see  Allegheny  v. 
Nelson,  25  Penn.  St.  332.  So  wliere 
an  act,  otherwise  private  and  local, 
contains  provisions  that  are  public 
and  general,  the  act,  although  partly 
local  and  partly  public,  will  be 
deemed  a  public  act.  which  need  not 
be  pleaded  or  proved.  People  v.  Mo- 
Cann,  16  N.  Y.  61;  Williams  v.  Peo- 
ple, 24  id.  407.  Thus  an  act  author- 
izing a  municipal  corporation  to  raise 
money  by  tax,  which  also  contained 
a  clause  that  restricted  or  changed 
the  jurisdiction  of  the  courts  in  ref- 
erence to  actions  -in  which  such  cor- 
poration was  a  party,  was  held  to  be 
a  public  statute,  of  which  the  court 
would  take  judicial  notice.  Bretz  v. 
The  Mavor  of  N.  Y.,  6  Rob.  (X.  Y.) 
330. 

"  Though  it  be  true,"  says  Buller, 
J.,  (Kirk  v.  XorviU,  1  T.  R.  125), 
"  that  an  act  of  Parliament  relating 
to  trade  in  general  is  a  public  act, 
yet  a  statute  which  relates  only  to  a 


certain  trade  is  a  private  one."  But 
in  another  case,  King  v.  Briggs,  Skin. 
428,  the  court  defined  the  distinction 
between  an  act  partly  private  and 
partly  public,  in  this  way:  "Al- 
though an  act  concern  a  particular 
thing,  and  therefore  is  private  in  its 
nature,  yet  if  a  forfeiture  be  given  to 
the  king  by  it,  this  makes  it  a  pub- 
lic act." 

So  in  a  later  case,  Samuel  v. 
Evans,  2  T.  R.  569,  the  court  held 
that,  independent  of  the  statute  of 
Anne,  an  act  providing  that  the 
sheriff  might  assign  the  bail  bond 
was  a  public  statute,  of  which  the 
court  would  take  notice  without  its 
being  either  pleaded  or  proved. 

In  an  early  English  case,  Holland'^ 
Case,  4  Coke,  79,  the  learned  re- 
porter defined  the  distinction  between 
public  statutes  and  private  statutes 
thus :  "  The  rule  of  the  law  is,  that 
of  general  statutes  the  court  ought 
to  take  notice,  although  they  be  not 
pleaded;  otherwise  of  special  or  par- 
ticular statutes;  therefore,  for  the 
better  understanding  of  your  books 
in  this  point,  and  which  shall  be  said 
in  judgment  of  law.  statutmn  gen- 
erale,  and  which  is  statutum  speciale, 
it  is  to  be  known  that  '  f/cnerale 
dicitur  a  genere,  etc.,  spedale  a 
specie;  and  there  are  genus,  species 
et  individua.  Spirituality  is  gentts; 
bishopric,  deanery,  etc.,  are  species, 
and  bishopric,  or  deanery  of  Norwich 
is  individual.  Therefore,  it  was  re- 
solved in  this  case  that,  forasmuch 
as  the  act  of  21  Henry  8  concerns  the 
whole  spirituality  in  general,  it  was 
a  general  act,  of  which  the  judges 
ought  to  take  notice."  In  Claypool 
V.  Carter,  Pash.  31,  it  was  held  that 
an  act  of  Parliament  relating  to  Eton 
and  Winchester  colleges  was  a  par- 
ticular act,  of  which  the  judge  should 
not  take  notice.  So  in  Elmer  v.  Gate. 
2  Roll.  466,  that  the  statute  of  30 
Eliz.,    relating    to    leases    made     by 


5T4:  Evidence.  [Chap.  17 

It  will  often  be  found  difficult  to  determine  precisely  what 
statutes  are,  and  what  are  not  ''public  statutes"  when  the  statute 
only  applies  to  a  municipal  corporation,  or  a  certain  district  of 
the  State.  But  the  real  test  applied  by  the  courts,  and  the  real 
guide  seems  to  be,  that  an  act  which  applies  equally  to  all  per- 
sons within  the  district  designated,  or  to  all  persons  doing  or 
omitting  to  do  a  particular  act,  is  a  public  statute  within  the  rule. 

Thus  it  will  be  seen  that,  although  an  act  may  affect  very  many 
persons,  yet,  if  it  is  not  equal  and  general  in  its  application  to 
all,  in  the  State  or  locality  to  which  it  relates,  it  is  a  private  act, 
which  must  be  pleaded  and  proved ;  but,  if  it  is  general  in  its 
effect,  and  applies  equally  to  all  within  the  locality  to  which  it 
relates,  it  is  a  public  act,  of  which  the  courts  will  take  judicial 
notice.  This  is  the  modern  rule,  which  varies  essentially  from 
the  doctrine  advanced  in  some  of  the  reports.  Yet,  whenever  a 
purely  private  act  provides  in  certain  events  a  forfeiture  to  the 
government,  or,  in  the  case  of  a  corporation,  that  the  government 
in  a  certain  contingency  may  take  the  property,  it  is  deemed  a  pub- 
lic act.'  And  indeed  all  acts  which  in  any  wise  concern  the  gov- 
ernment, or  any  of  its  co-ordinate  branches,  may  be  said  to  be 
public.^  So  all  acts  in  amendment  of  acts  declared  public  by 
the  terms  of  the  original  act.®  So  acts  authorizing  all  corpora- 
tions of  a  particular  class  to  do  certain  acts,  as  all  the  railroads 
of  the  State  to  subscribe  for  the  stock  of  other  roads.^''  Or 
indeed  any  statutes,  providing  penalties  or  remedies  affecting  all 
persons  who  may  offend  against  them,  when  all  persons  may  come 
within  their  purview,  are  regarded  as  public." 

Charters  of  municipal  corporations  are  public  acts,  whether  so 
declared  in  the  act  creating  them  or  not,  and  need  not  be  alleged 
in  the  pleadings,  or  proved  on  the  trial,  in  actions  where  the  pro- 
visions of  such    charters  become  material.^^     And   the  same  is 

bishops,  was  a  special  act,  because  it  "  Pierce    v.    Kimball,    9    Me.    54 ; 

concerned  bishops  only,  who  are  but  Hendee   v.   Ayres,    12   Pick.    (Mass.) 

species  of  spirituality.  344. 

^Jenkins  v.  Union  Turnpike  Co.,  1  "State   v.    Sherman,   42    Mo.   210; 

Caines'  Cas.   (N.  Y.)  86.  Griffing   v.    Gibb,    2    Black    (U.    S.), 

•Dwarris    on    Statutes,    vol.    2,    p.  519;      Alexander    v.    Milwaukee,     14 

464.  Wis.  247;   Bi-ell  v.  McDonald,  7  Kan. 

•  Bank  of  Utica  v.  Smedes,  3  Cow.  426 ;     Cage    v.  ]\Iobile,   30  Ala.   538 ; 

(N.  Y.)   684.  Terry    v.    Milwaukee,    15    Wis.    490; 

"  White  V.  Syracuse  &  Utica  R.  R.  Janesville  v.  Milwaukee,  etc.,    R.   R. 

Co.,  14  Barb.    (N.  Y.)    559.  Co.,  7  id.  484;  Swaine  v.   Comstock, 


Sec.  175.]  Judicial  IN'otice.  575 

true  as  to  all  amendments  thereto. ^^  But  -when  municipal  cor- 
porations are  formed  under  a  general  law,  their  organization  and 
all  the  legal  steps  requisite  to  perfect  their  organization  must  be 
proved.  So,  where,  bj  the  terms  of  the  charter,  the  question  of 
acceptance  is  submitted  to  the  people,  its  acceptance  by  them  must 
be  duly  alleged  and  proved.^^  By-laws  of  a  municipal  corpora- 
tion are  private  acts  and  will  not  be  judicially  noticed.^^  So  of 
municipal  ordinances,  which  must  be  attested  by  the  city  clerk  to 
be  admissible,^^  although  it  has  been  held  that  a  municipal  court 
may  take  judicial  notice  of  the  ordinances  of  its  municipality, 
and  so  may  a  superior  court  on  appeal  from  a  municipal  court." 
The  charter  of  a  city  is  a  public  act  of  which  the  courts  take 
judicial  notice,^^  as  well  as  of  its  territorial  limits,'^  and  of  the 
incorporation  of  municipalities  by  special  acts  of  the  legislature 
and  of  the  territory  included,  because  these  matters  are  disclosed 
by  the  enactments  themselves,  but  they  will  not  take  notice  of  the 
width  of  streets  not  mentioned  in  the  charter,^"  A  State  court 
will  take  judicial  notice  of  the  adoption  of  township  organization 
by  any  county  in  the  State. ^^  Charters  of  private  corporations 
are  private  acts,  unless  made  public  by  the  terms  of  the  act  cre- 
ating them,  and  must  be  proved. ^^     In  Kentucky,  courts  are  now 

18   id.   463;      Smith   v.   Flourney,  47  in  the  courts  of  the  State.     They  are 

Ala.    345;      Letier   v.    Oskaloosa,    41  the    laws    of    the    forum — tlie    euact- 

lowa,  353;   Bretz  v.  Mayor  of  N.  Y.,  merits    of   the   legislative   depMrtnient 

6   Rob.    (N.   Y. )    325;    Fauntleroy   v.  of  the  government  of  which   the  niu- 

Hannibal,  1  Dill.    (U.  S.)    118;   Haw-  nicipal   court   is   the  judicial    branch, 

thorne  v.  lloboken,  3  Vroom   (N.  J.),  Taylor    v.    City   of    Sandersville,    118 

72;  Payne  v.  Treadwell.   10  Cal.  220.  Ga'.  63,  44  S.  E.  845.     The  court  will 

'^Hawthorne     v.     Hoboken,    ante;  take  judicial   notice  of  the  organiza- 

Terry  v.  Milwaukee,  ante.  tion  of  a  city,  so  it  is  not  necessary 

"Johnson   v.   Common   Council,    10  to     prove    such    organization     before 

Ind.  227.  putting     in     evidence     its     municipal 

^°  Tucker    v.   Com.,   4    Bii^sh    (Ky. ),  ordinances.     Jackson  v.  Kansas  City, 

40;     Mooney  v.  Kennett,  19  Mo.  551;  etc.,  R.  R.  Co.,  157  Mo.  621,  58  S.  VV. 

Cox  V.  St.  Louis,  11   id.  431;   Garvin  32,  80  Am.  St.  Rep.  650. 

V.     Wells,    8    Clarke     (Iowa),    286;  "Arndt   v.    City    of    Cullman,    132 

Barker  v.  Mayor  of  N.  Y.,  17  Wend.  Ala.  540,  31  So.  478. 

(N.  Y.)    464.  ^»Ex    Parte   Wygant,   39   Ore.    419, 

^"O'Brien    v.    Woburn,     184    Mass.  64  P.  807,  87  Am.  St.  Rep.  073. 

598,  69  X.  E.  R.  350.  =»  Coe    College    v.    City    of    Cedar 

"Portland  v.  Yick,  44  Or.  439,   75  Rapid?.  120  Iowa,  541,  95  N.  W.  267. 

Pac.  706.     See,  also,  State  v.   Sieber,  -■  I'hiliips      v.      Town      of      Scales 

11   Iowa,   407.     In  a  municipal   court  Muuiid,   195  111.  353,  63  N.  E.  R.  180. 

the  city  ordinances  will  be  judicially  "  Diake  v.  Flewellon,  33  Ala.  674; 

noticed.     Relatively  to  the  municipal  Tucker  v.  Com.,  8  Bush    (Ky. ),  440; 

court,    an    ordinance   of    the    munici-  Perdicaris  v.   Trenton,  etc.,  29  N.   J. 

pality  stands  upon  the  same   footing  L.   367;   Butler   v.   Robinson,   75   Mo. 

as  do  public  acts  of  the  Legislature  192. 


576  Evidence.  fCbap.  17 

by  statute  required  to  take  judicial  notice  of  all  laws,  public  or 
private.^^  But  otberwise  of  charters  of  banks  authorized  to  issue 
notes. ^* 

Sec.   176.  Currency,   Customs,   History,  Political  and   Govern- 
mental Matters. 

Courts  will  not  take  judicial  notice  of  the  value  of  bank 
notes,  although  used  as  currency,  nor  of  the  depreciation  of  the 
national  currency,^  But  courts  will  take  judicial  notice  of  the 
hind  of  currency  in  use,  and  that  gold  and  silver  coin  is  no  longer 
used  as  such,  but  has  become  an  article  of  traffic  and  merchan- 
dise,^ and  that  contracts  made  at  a  particular  time  are  made  in 
reference  to  the  particular  currency  then  in  use  ;^  also  of  the 
genuineness  and  value  of  American  coin,  as  dimes,  eagles,  etc. ; 
and  in  a  case  where  in  an  indictment  the  respondent  was  charged 
■with  the  larceny  of  a  gold  coin  called  an  American  eagle  without 
stating  its  value,  this  was  held  sufficient.^  But  the  value  of  for- 
eign coin  or  currency  must  be  proved,  unless  its  value  has  been 
fixed  by  congress.^ 

Courts  will  not  take  judicial  notice  of  local  customs,  or  the 
meaning  of  devices  used  in  a  particular  trade,  and  the  same,  if 
relied  upon,  must  be  proved;^  but  they  will  judicially  notice  a 
general  custom  of  merchants  throughout  the  State,^  or  one  so  uni- 
versal and  general  that  persons  are  presumed  to  know  of  it  f  and 
of  the  law  merchant  ;^  and  of  commercial  usage  as  to  days  dies 

=»  Collier   v.   Baptist,   etc.,    Soc,    48  S.   v.  Burns,  5  McLean    (U.   S.),  23; 

B.  Monr.    (Ky.)   68.  U.   S.  v.   King,   5   id.  208. 

"Biiell    V.    Warner.    33    Vt.    570;  '^  Kermott   v.   Ayer,    11    Mich.    181; 

Davis  V.  Bank  of  Fulton,  31  Ga.   59;  McButt  v.   Hoge, '2   Hilt.    (N.   Y.   C. 

Bank    of   Newberry   v.    Gr.    C.   R.   E.  P.)    81. 

Co.,  9   Rich.    (S.   C.)    495;      Shaw  v.  *  Johnson  v.  Robertson,  31  Md.  416; 

State,   3    Sneed    (Tenn.),   86;      State  Wheeler  v.   Webster,    1    E.   D.    Smith 

Bank  v.  Watkins.  1  Eng.   (Ark.)    123.  (N.  Y.),  1;   Harsh  v.  North,  40  Penn. 

^Feemster  v.  Ringo.  5  Monr.   (Ky. )  St.  241;   Humphreysville,   etc.,  Co.  v. 

336;     Madawell    v.    Holmes,    40  Ala.  Vt..  etc.,    Co.,   33    Vt.   92:   Turner  v. 

391;  but  see  State  Bank  v.  Watkins,  Fish,     28     Miss.     300;     Sullivan     v, 

1  Eng.   (Ark.)   123.  contra.  Heuse,  2  Col.  424. 

*U.   S.   V.   American' Gold   Coin,    1  'Smith    v.    Miller,    43   N.    Y.    171; 

Woolw.     (U.    S. )    217;      Lampton    v.  Bronson  v.  Windsor,  8  id.  182. 

Hazzard,  3  Monr.    (Ky.)    149;   Janes  'McKinnon  v.  Bliss,  21  N.  Y.  206; 

V.  Overstreet,  4  id.  547.  Munn  v.   Burch,  25   111.   35;   Gregory 

'Buford  v.  Tucker,  44  Ala.  89.  v.  Baugh,  4  Rand.   (Va.)   611. 

*  Daily  v.  State,   10  Ind.   536;      U.  ^Jewell  v.  Centre,  25  Ala.  498. 


Sec.  1.76.]  Judicial  ISTotice.  577 

non,  as  Sundays  and  Christmas.^*^  So  a  universal  custom  to  rec- 
ognize the  rights  of  a  prior  appropriator  of  water  for  mining  and 
other  beneficial  uses  in  a  certain  district  may  be  judicially  recog- 
nized by  the  courts/^  as  also  well  known  customs  and  usages  gov- 
erning the  creation  and  existence  of  all  organized  political  par- 
ties in  the  country.^-  The  court  will  take  judicial  notice  of  a 
well  known  custom  of  banks  and  so  of  the  fact  that  a  bank  when 
it  makes  a  collection  from  foreign  correspondents  never  remits 
the  specie  collected  but  always  sends  therefor  its  draft  or  certifi- 
cate of  deposit.^^ 

Courts  will  not  generally  take  notice  of  historical 
facts,"  except  matters  of  public  histoiy  affecting  the  whole 
State  or  people. ^^  A  state  court  will  take  judicial  knowledge  of 
such  essential  historic  facts  as  have  exercised  influence  on  the 
Commonwealth  and  also  of  any  matters  of  public  history  affecting 
the  whole  public,  and  so  they  will  take  notice  of  the  cession  of  a' 
portion  of  the  territory  of  the  state  to  a  foreign  jurisdiction." 
So  the  courts  will  take  judicial  notice  that  under  the  treaty  of 
Paris,  between  the  United  States  and  Spain,  the  Philippine  Is- 
lands became  a  part  of  the  territory  of  the  United  States,  and 
that  after  that  time  the  inhabitants  of  those  islands  were  in  a  state 
of  insurrection  against  our  government,  as  the  insurrection  was 
recognized  in  a  proclamation  of  the  president.  The  existence  of 
war  ig  a  political  question  and  courts  take  notice  without  proof 
of  the  acts  of  the  different  political  departments  of  the  govern- 
ment." The  court  may  take  notice  of  the  order  of  the  governor 
to  the  militia  and  his  proclamation  to  avert  rioting,  as  a  matter 
of  history.^^  '  So  of  the  existence  of  civil  war  in  the  country,^® 

^**  Sassur  v.  Farmers'  Bank,  4  Md.  137 ;  Killebreur  v.  Murphy,  3  Heisk. 

409.  (Tenn.)    346;      Cuyler   v.    Terrill,    1 

"Isaacs  V.  Barber,   10  Wash.   124,  Abb.   (U.  S.)   169;  Stokes  v.  Macken, 

38    P.    871,    45    Am.    St.    Rep.    772;  62  Barb.    (N.  Y.)    145;  Wood  v.  Wil- 

Crawford    Co.    v.    Hathaway     (Neb.,  der,    43    N.    Y.    164;      Ferdinand    v. 

1903),  93  N.  W.  781,  794.  State,  39  Ala.  706. 

"State   V.    Metcalf    (S.   D.,    1904),  '"  Lasher  v.  State,  30  Tex.  App.  387, 

100  N.  W.  923.  17  S.  W.  1064,  28  Am.  St.  Rep.  922; 

"  Bowman  v.  First  National  Bank,  People  v.  Snyder,  41  N.  Y.  397. 

9  Wash.  614,  38  P.  211,  43  Am.  St.  ''La  Rue  v.  Kansas  Mut.  Life  Ins. 

Rep.  870.  Co.,  68  Kan.  539,  75  Pae.  494. 

"McKinnon  v!  Bliss,  21  N.  Y.  206;  "  Bosworth  v.   Union  R.  Co.,  25  R. 

Gregory  v.  Baugh,  4  Rand.  (Va.)  611.  I.  202,  58  A.  982. 

"  Simonton  v.  Columbian  Ins.  Co.,  ''  Swinnerton  v.  Columbia  Ins.  Co., 

37    N.    Y.    174;   Payne    v.    Treadwell,  ante. 
16  Cal.  220;   Rice  v.  Shook,  27   Ark. 
37 


578  Evidence.  [Chap.  IT 

or  of  tlie  separation  of  churches  of  the  same  denomination,  as  the 
separation  of  the  Methodist  church  into  two  national  bodies  under 
the  name  of  the  Methodist  Church  ISTorth,  and  Methodist  Church 
South  f^  or  that  a  certain  college  is  a  national  institution  f^  of  the 
division  of  a  State  into  to\vn&;"  of  the  political  and  social  condi- 
tion of  the  people  of  the  country  over  which  their  jurisdiction 
extends;"^  of  who,  from  time  to  time,  presides  over  the  patent 
office,  or  other  executive  or  judicial  department  of  the  government, 
even  though  for  a  temporary,  rather  than  a  permanent  purpose.  ^^ 
The  courts  will  take  judicial  notice  of  the  rites  of  the  Mormon 
church  and  of  works  of  history  and  church  records  on  the  subject 
and  by  their  means  as'certain  the  meaning  of  a  certain  form  of 
marriage  called  "  sealing."""  The  courts  will  also  take  notice 
of  the  fact  that  Maryland  embraces  a  part  of  the  territory  of  the 
original  English  colonies  of  America,  and,  in  the  absence  of  evi- 
dence to  the  contrary,  it  will  be  presumed  that  the  common  law 
obtains  there. ^®  As  to  the  history  of  a  country ;  the  places  where 
courts  are,  or  formerly  have  been,  held  therein,  and  as  to  the  times 
when  s'aid  courts  were  held,  and  when  the  change  in  the  place  or 
time  of  the  holding  of  courts  was  made.^^  And  that  it  has  adopted 
townships,  and  when.^^  Of  who  are  public  officers  of  the  State, 
executive  or  judicial,"^  and  of  any  changes  therein  f^  the  time 
when  their  term  of  office  commenced,  and  when  it  ended ;  also  of 
the  genuineness  of  their  signatures."^  As  who  is  governor,^'  and 
of  appointments  made  by  him  under  the  cons'titution  and  laws;^^ 
of  who  are  judges  of  subordinate  courts  f'^  of  orders  issued  by  .com- 

'"  Humphrey   v.    Burnside,    4    Bush  and  so  in   Georgia  of  the  ordinaries 

(Ky. ),    215.  of  the  several   counties   of  the   state. 

"Oxford  Rate,  8  E.  &  B.  184.  Bailey     v.     McAlpin,      (Ga.,      1905), 

=«  State    V.    Powers.    25    Conn.    48;  50  S.  E.  388. 
King  V.  Kent,  29   Ala.   542.  ^°  The  court  will   take  judicial    no- 

^' Irwin  V.  Phillips.  5  Cal.  140.  tice  that  a  former  state  treasurer  an.i 

"  York  &  Maryland  Line  E.  R.  Co.  former   state   attorney-general   ceased 

V.  Winans,  17  How.   (U.  S.)   30.  to  hold  office  on  a  certain  date,  their 

^Hilton  V.  Roylanee,  25  Utah,  129,  successors  having  been  elected  and  in- 

69   Pac.    660.  ducted  into  office.     State  v.  Board  of 

"N.     Frank     &     Sons     v.     Gump.  Canvassers,     (Mont.,    1905),    79    Pac. 

(Va..  1905),  51  S.  E.  358.  402. 

==' Robertson   v.    Teal,    9    Tex.    344;  "People    v.    Johr,     22    Mich.    461; 

Ross  v.  Austell,  2  Cal.  183.  Heizer  v.  State,  12  Md.  330. 

-«Rock  Island  v.  Steele.  31  111.  543.  =>' Wells  v.  Jackson,  etc.,  Co.,  47  K. 

^"The  courts  are  bound  to  take  ju-  H.  235. 
dicial   notice   of   who   are   the   public  ^^  State  v.  Evans,  8  Humph.  (Tenn.) 

officers    of    the    state    holding    under  110. 
commissions   issued  by  the  governor  ^*  Kilpatrick  v.  Com.,  31  Penn.  198, 


Sec.  176.]  Judicial  jSTotice.  57^ 

petent  military  authority  f^  of  who  are  justices  of  the  peace  in  the 
county  where  the  court  is  held,  and  of  the  genuineness  of  their 
signatures  ;^®  who  are  elected  sheriffs',  time  when  their  term  of 
office  commences,  and  when  it  ends,  and  of  the  genuineness  of  their 
signatures  f  but  not  who  are  deputy  officers,  sheriffs  or  otherwise.^^ 
Who  are  the  officers  of  the  court,  and,  in  a  case  where  the  w^ord 
"  clerk  "  was  omitted  from  the  jurat  of  an  affidavit,  it  was  held 
sufficient,  as  the  court  was  bound  to  know  who  was  clerk,  and 
whether  his  signature  was  genuine. ^^  But  not  who  are  officers  of 
other  courts.'**^  That  a  certain  person  is  an  attorney.'*^  And  of  the 
genuineness  of  his  signature  connected  with  professional  acts  done 
by  him,  but  not  in  cases  in  which  he  is  himself  a  party.^^  Also 
of  what  attorneys  have  appeared  in  a  cause/^  Who  are  executive 
and  judicial  officers  of  the  United  States',  elected  or  appointed  in 
pursuance  of  the  constitution  or  laws  of  congress.^*  Who  are  regis- 
trars of  a  county.^^ 

Where  a  statute  authorizes  executive  officers  to  make  general 
rules  for  the  conduct  of  public  business,  and  such  rules  are  duly 
made  and  published,  the  courts  will  take  judicial  notice  of  them.*^ 

The  courts  will  take  judicial  notice  of  the  rules  and  regulations 
of  the  executive  government  and  so  of  the  regulations  of  the  secre- 
tary of  the  interior.^^ 

"New  Orleans  v.  Templeton,  20  La.  "People  v.  Kevins,  1  Hill   (N.  Y.), 

Ann.    141;    Lanfier  v.   Mester.    18   id.  154. 

497 ;   Taylor  v.  Graham,  id.  656.  *^  Masterson   v.    Le   Clare,   4   Minn. 

«» Graham  v.  Anderson,  42  111.  514;  163. 

Chambers  v.  People,  4  Scamm.    (111.)  ^^  Svmmes   v.   Mayor,   21    Ind.    443. 

351.  "York   &   Md.   Line   E.    R.    Co.    v. 

*' The  appointment  or  retirement  of  Winans,   17   How.    (U.   S.)    30. 

a   sheriff  will   be   recognized   without  *^  Fancher  v.  De  Montegre,  1  Head, 

proof,   on   account  of  the  importance  (Tenn.)    40. 

of  the  ofBce.     State  v.  Megaarden,  SH  *°  Larson      v.      First     Nat.      Bank, 

Minn.  41,  88  N.  W.  412,  89  Am.  St.  (Neb.,    1902),   92    N.   W.    729. 

Eep.   534;   Rayland  v.  Wynn's  Adm.,  *^  Zevely  v.  Weimer,   (Indian  Terri- 

37   Ala.   32;    Alexander  v.   Burnham.  tory),  82  S.  W.  941,  949. 

18  Wis.  199;   Wetherbee  v.  Dunn,  32  "Wherever,  by  the  express  language 

Cal.   106;   Dyer  v.   Flint,   21   111.   80;  of  any  act  of  Congress,  power  is  en- 

Ingraham  v.  State,  27  Ala.  17.  trusted  to  either  of  the  principal  de- 

^' Ward    V.     Henry,     19    Wis.     76;  partments  of  government  to  prescribe 

Joyce    V.    Joyce,    5    Cal.    449 ;    State  rules  and  regulations  for  the  transae- 

Bank  v.  Curran,  5  Eng.    (Ark.)    14i:;  tion  of  business  in  which  the  public 

Lund  v.  Patterson,  Minor  (   Ala. )    14.  is  interested,  and  in  respect  to  which 

^^  Mayor  v.  State,  2  Sneed   (Tenn.)  they  have  a  right  to  participate,  and 

11;  Dyer  v.  Loat,  57  111.  179;  Thomp-  by  which  they  are  to  be  controlled,  the 

son  V.  Haskell,  21   id.  215;  Bishop  v'.  rules    and    regulations    prescribed    in 

State,  30  Ala.  34.  pursuance   of   such   authority   become 

*"  Norwell    v.    McHenry,     1     Mann.  a  mass  of  that  body  of  public  records 

(Mich.)    227.  of  which  the  courts  take  judicial  no- 


580  Evidence.  [Chap.  17 

Of  general  elections,*^  but  not  of  elections  in  other  States  except 
where  it  is  fixed  by  act  of  congT'ess'.^®  And  who  are  elected  to 
fill  certain  ofiices,  when  their  term  begins,  when  it  ends,  and  of  all 
changes  therein,  whether  by  death,  resignation  or  otherwise,  and  of 
the  genniness  of  their  signature.^** 

Courts  will  take  judicial  notice  of  notarial  certificates  as  j^roof 
of  presentation  and  non-payment  f^  so  of  foreign  treaties  with  our 
national  government  f^  so  of  the  charter  of  a  railroad  company 
printed  with  legislative  documents  by  authority  of  the  State  f^  so 
of  what  is  meant  by  the  words  "  Gift  enterprise  ;"^*  of  what  con- 
stitutes the  twentieth  judicial  day  of  the  term  of  the  court  below  f^ 
of  its  own  judgment  in  a  suit  which  is  virtually  a  part  of  the  same 
record  f^  of  the  expiration  of  a  bank  charter."  The  United  States 
courts  will  take  judicial  notice  that  the  United  States  for  revenue 
purposes  is  divided  into  districts  with  certain  geographical  boun- 
daries,^^ and  also  of  the  public  statutes  of  the  several  States  f^  but 
State  courts  will  not.^*'  Courts  will  take  judicial  notice  of  the  offi- 
cial act's  of  an  alderman  f^  of  the  official  signature  of  its  clerk  ;^^ 
of  the  repeal  of  a  section  of  an  act  incorporating  a  town  f^  of  the 

tice."    So  the  court  mav  take  judicial  within  the  county  of  his  jurisdiction, 

notice   of    the   rules    of   the    InteriiT  Black  v.  Minneapolis  &  St.  L.  R.  Co., 

Department  as  to  contests  before  th?  122  Iowa,  32,  96  N.  W.  984. 

Land  Office.     Caha  v.  United   States,  ^-  Lacroix     v.     Sarrazzin,     15     Fed. 

152  U.  S.  211,  221,  14  S.  Ct.  513.  Rep.  489. 

*'Rice  V.   Mead    22   How.    Pr.    (N.  ^  Hall  v.  Brown,  58  N.  H.  93.    But 

Y. )    445;    Davis    v.     Best,    2    Clarke  see   Timlow  v.    Philadelphia,   etc.,   R. 

(Iowa),  96;  State  v.  Minnick,   15  id.  R.  Co.,  99  Penn.  St.  284. 

123.  "^  Lehman  v.  State,  81  Ind.  15. 

*^  Taylor  V.  Renne,  35  Barb.   (N.  Y.)  "Lewis    v.    Wintrode,    76    Ind.    13. 

272;    Dale  v.  Wilson,    16   Minn.   525.  '^^  Farrar  v,  Bates,  55  Tex.  193. 

*» Alexander   v.   Burnham,    18   Wis.  "Terry  v.    Merchants',   etc.,   Bank, 

199;  Wells  v.  Jackson,  47  N.  H.  235;  66  Ga.  177. 

Ex  parte  Peterson,  33  Ala.  74;  State  =' United  States  v.  Jackson,  104  U. 

V.    Williams.    5   Wis.    308;    Heizer   v.  S.  41. 

State,  12  Ind.  330;  Ragland  v.  Winn,  '» Edward   v.    Flanagan,    104   U.    S. 

1  Ala.  270;  Templeton  v.  Morgan,  16  462. 

La.    Ann.    438;     Ragland    v.    Winn's  ™  Robards  v.  Morley,   80  Ind.   185; 

Adm'r    37  Ala.  32.  Neese  v.   Farmers'  Ins.  Co.,  55  Iowa, 

^'Pierce  v.  Indseth,   106  U.  S.  546.  604;     Chapman    v.    Colby,    47    Mich. 

A  county  court  may  take  judicial  no-  16. 

tice  of  who  are  the  notaries  public  in  "Fox  v.    Com.,   81    Penn.    St.    5L1. 

the  county.    Hertig  v.  People,  159  111.  "  Buell  v.  State,  72  Ind.  523.     But 

237,  42   N.   E.  879,  50   Am.  St.  Rep.  see  Russell  v.  Sargent,  7  111.  App.  98, 

162.     The  court  will  take  judicial  no-  where  it  was  held  that  an  appellate 

tice  that  the  person  whose  name  ap-  court  will  not  take  judicial  notice  of 

pears  on  a  jurat  to  an  affidavit  was  a  what  persons  are  judges  of  the   Cir- 

notary  public   in  and  for  the  county  cuit  Court, 

named  and  it  presumes  that  he  acted  "Belmont   v.   Morrill,   69  Me.   314. 


S«c.  176.]  Jtoicial  Notice.  581 

suspension  of  a  public  statute."    State  courts  will  not  take  judicial 
Pledge  of  bantaptoy  proceedings ;»  but  the,  -»   ^ te  ^tj  e 
of  (he  chancery  district  in  which  a  certain  town  in  the  State  is  situ 
.  cd  «  of  matLs  of  public  history,  as  of  Fremont  s  public  career 
in  California  in  1846  and  '47  f  of  the  existence  of  a  quasv  public 
corporation,  as  a  railroad  corporation ;»  of  the  history  of  the  State 
and  its  topography  and  condition  f  of  the  course  of  seasons  and  of 
husbandr^™  of  the  course  of  business  in  the  country  and  of  new 
processes  oi  practical  utility  in  facilitating  trade;"  of  the  func- 
C  of  town  officers  under  the  statute,"  and  of  common  epithets 
which  are  generally  understood,  as  "  Beecher  business,  applied  to 

'  OnCriliation  or  coming  in  of  public  officers;"  and  of  the 
duties  imposed  upon  persons  or  officers  by  State  or  national  law  «. 
specting  particular  matters."  Of  the  jurisdiction  of  courts  of    he 
Stltl  and  of  the  United  States,  and  of  the  acts  giving  it. '  That  the 
IZZi  townships  are  political  bodies."    0^  rstituttons  o 
other  States  and  powers  thereby  given  to  courts.™     That  public 
Teets  in  cities  are  public  highways."    That  municipal  corpora^ 
tfon.  have  the  power  to  improve  streets.-    Of  the  --g^bility  of 
the  streams  of  the  State."    But  not  as  to  what  streams  are  ^o^<- 
able  ''    Of  the  facilities  for  public  travel  between  different  points 
the  great  lines  of  public  travel  and  their  connections        Also,  of 
facts  that    are    a    part   of   the  experience   of  the   day,    as   the 

Tir       f    Or^    V  "SemDle  v.  Hasrar,  27  Cal.  163. 

"East   Tenn     Iron   Manuf.    Co.    v.  ^^^^/^     Van    Daren,    16    Wis. 

Gaskell,  2  Lea  (Tenn.),  242  ^iq.   Bretz  v    Mayor,  etc.,  of  N.  Y., 

-Estabrook   Steel   Pen  Manuf.   Co.  319     Bretz  v.   li  y     , 

V.  Ahern,  30  N.  J.  Eq-  341^  6  Kob^  ^^^^  ^^  ^    Chapman,  11  Mich. 

«» Alabama,    etc..    Life    Ins.    Co.    v.  i.e  vrid  g                 t- 

Cobb,  57  Ala.  547.  ^B^^itcher   v.    Brownsville,    2    Kan. 

"  De  Celis  v.  United  States,  13  Lt.       ^      cuicnei 

of  CI.  117.  -D      13      p«  V  '9  Wittaker  V.  Eighth  Av.  R.  R.  Co., 

°« Baltimore,     etc.,     K.     R-     ^o.  \.       ,  p  V    ^tr    v  )   650 

Sherman,  30  Gratt.    (Va.)    602.  '  5^ J,^^  v.  Titcomb,  19  Ind.  135. 

e»  Wilson  v^  Sta  e,   54  Ind.  5o3.  .SeJhLser    v.    State     28    Ind 

-Ross  V.  Boswell    60  Ind    235  as  ^^^^  ^    ^^^^^^^^  g  ^^^.^     ^^t. 

when   crops     mature.       Tomlinson  \.       "^    '  ^„- 

Greenfield,  31  x\rk.  557.  »=  Adsit    v     Allen.    42    N.    Y.    378; 

"  Wiggin  Ferry  Co.  v^  Chicago,  etc.,  Adsit   v    A  ^^  .^^^    ^^^ 

R.  R.  Co.,  5  Mo.  App.  347.  .        s^^anning    V.     Gasparie,     27     Ind. 

"Ingles  V.  State,  61  In<i.  212.  oqq  .Smith  v    N.  Y    Central   R.    R. 

"Bailey   v.   Kalamazoo   Publishmg       39j),  ^Simth  J.  ^i^    ^^    ^^^  ^   ^^^^^^^ 

Co.,  40  Mich.  251.  74.  I    v    Camden  &  Amboy  R.  R-  Co.,  45  N. 

^^E.  P«r!f.P^ter^«"i/3'o8  V,t;      Y    SufHines   v. 'cochran,    13    Ind. 
State  V.  Williams,  5  Wis.  308 ,  neizer       jl     ^     , 

V.  State,  12  Ind  330.  1'^- 


582 


Evidence. 


[Chap.  17 


usual  length  of  time  required  for  steam  passage  across  the  Atlan- 
tic.^* Of  the  coincidence  of  the  days  of  the  week  and  month.*^ 
The  court  judicially  knows  by  reference  to  the  almanac  on  what 
day  of  the  week  a  certain  day  of  the  month  fell/®  and  when  the 
sun  rises  and  sets'  during  different  days  ;^'  the  terms  of  court  in  the 
State,  their  commencement  and  close.^^ 

The  courts  will  take  judicial  cognizance  of  the  political  subdi- 
vision of  the  State,  that  a  particular  township  is  in  a  certain 
county  and  of  the  relative  location  of  such  towns  in  respect  to  each 
other.  But  the  courts  will  not  take  judicial  notice  of  the  location 
of  a  certain  lot  in  a  subdivisiion  of  lots  in  a  city  made  by  a  munici- 
pal officer  and  not  by  statute. ^^  So  the  court  will  take  judicial 
notice  of  the  boundaries  of  counties  and  their  area/°  and  the 
towns  of  which  they  are  composed,®^  It  will  take  judicial  notice  of 
the  names  of  counties  in  which  cities  in  the  State  are  situated,  but 
not  of  the  names  of  streets  and  public  places  in  the  towns  and 
cities  of  the  State.^^     The  court  will  take  judicial  notice  of  the 


»^  Oppenheim  v.  Wolf,  3  Sandf.  Ch. 
(N.  Y.)  571;  49  N.  Y.  Legal  Obs. 
259. 

=»  State  V.  Hammett,  2  Eng.  (Ark.) 
492 ;  Sprowl  v.  Lawrence,  33  Ala. 
106;  Seeman  v.  Owen,  31  id.  167; 
Mechanics'  Bank  v.  Gibson.  7  Wend. 
(N.  Y.)  460;  Davis  v.  Petticolas,  34 
Lex.  27. 

*"  Dorougli  V.  Equitable  Mortgage 
Co.,  118  Ga.  178,  45  S.  E.  22;  Phila- 
delphia, etc.,  R.  R.  Co.  V.  Lehman,  56 
Md.  209;  Reed  v.  W'ilson.  41  N_  j.  j,, 
29;  Mcintosh  v.  Lee,  57  Iowa,  356; 
People  V.  Chee  Kee.  61  Cal.  404.  See 
also.  State  v.  Hammett,  2  Eng.  (Ark.) 
492 ;  Sprowl  v.  Lawrence,  33  Ala. 
106;  Mechanics'  Bank  v.  Gibson,  7 
Wend.   (N.  Y.)    460. 

"' People  V.  Chee  Kee,  61   Cal.  404. 

^Pugh  V.  State,  2  Head.  (Tenn.) 
227;  Morgan  v.  State,  12  Ind.  448; 
McGinness  v.  State,  24  id.  500; 
Bethune  v.   Hale.  45  Ala.   522. 

""  Gunning  v.  People,  189  111.  165, 
59  N.  E.  494,  82  Am.  St.  Rep.  433, 
and  note  page  439.  (Explaining 
Sever  v.  Lyons.  170  111.  395,  48  N.  E. 
926  by  saying  that  the  court  in  that 
case  intended  only  to  decide  that  the 
court  would  take  judicial  notice  of 
the  fact  that  the  land  was  divided.) 


®"  Zimmercan  v.  Brooks,  (Ky.  / 
80  S.  W.  443. 

®^  Board  of  Commissioners  v.  Spit- 
tier,  13  Ind.  235;  Kidder  v.  Blaisdell, 
45   Me.  461. 

'=Baily  v.  Birkhofer,  123  Iowa,  59, 
98  N.  W.  594.  The  court  is  bound  to 
notice  without  proof  the  boundary 
line  of  the  counties  originally  laid  off 
in  accordance  with  the  governmental 
survey  and  also  the  effect  of  a  statute 
creating  a  certain  county  and  the 
court  may  take  cognizance  also  of  the 
fact  that  there  has  been  no  resurvey 
of  the  territory  embraced  in  that 
county  or  any  renumbering  of  th'> 
original  land  lots.  Standford  v. 
Bailey,  (Ga.,  1905),  50  S.  E.  161. 
Where  property  in  a  pleading  is 
clearly  and  distinctly  described  the 
county  in  which  the  land  so  described 
is  situated  is  a  matter  within  the  ju- 
dicial knowledge  of  the  courts.  For 
the  purpose  of  informing  itself  the 
court  might  inquire  of  others,  or  re- 
fer to  books  or  documents,  or  any 
other  source  of  information  which  it 
might  deem  authentic,  but  this  action 
in  this  respect  is  not  a  part  of  the 
trial  of  issues  in  the  case.  Rogers  v. 
Cady,  104  Cal.  288,  38  P.  81,  43  Am. 
St.  Rep.    100.     While  the  court  will 


Sec.  176.]  Judicial  IN'otice.  583 

situation  of  land  according  to  the  government  siirvey,^^  and  of 
the  fact  that  a  certain  county  in  the  State  lies  on  the  west  bank  of 
a  certain  river/*  and  it  may  also  take  judicial  notice  of  the  boun- 
daries of  a  city  in  a  State  as  set  forth  in  its  acts  of  incorporation 
and  also  of  the  fact  that  a  certain  river  flows  in  a  certain  direction 
through  a  certain  part  of  the  city.^"  So  the  court  may  make  judi- 
cial cognizance  of  the  source,  course  and  mouth  of  a  certain  river 
in  a  State  and  that  along  a  certain  part  of  it  the  river  affords  a 
natural  and  free  highway  for  the  pas'sage  of  fish.^^  And  where  in 
an  indictment  an  offense  is  stated  to  have  been  committed  in  a 
certain  to^vn,  without  naming  the  county,  it  is  sufficient,  as  the 
court  will  take  judicial  notice  of  the  county  in  which  the  town  is 
situated.^^  But  in  England  the  rule  isi  otherwise."^  Of  what 
lands  are  held  by  the  general  government  in  the  State  ;^^  of  the 
boundaries  of  tlie  State,^"*'  and  of  all  agreements  in  reference 
thereto,^"^  and  of  all  changes  therein  i^""  and  of  counties  ;^"^  and  of 
municipal  corporations',  when  the  boundaries  are  defined  in  the 
act  creating  them  ;^''*  but  not  where  their  boundary  is  purely  a  mat- 
ter of  municipal  regulation,  or  of  record  under  general  laws.^**^ 
So  they  will  take  judicial  notice  of  the  distance  between  the  prin- 
cipal cities  of  the  country,  and  of  the  time  ordinarily  required 
for  railway  trains  to  run  to  and  from  them  ;^''^  but  they  will  not 
take  judicial  notice  of  the  distance  of  a  certain  mining  location 
from  the  seat  of  government  i^"^  but  they  will  judicially  notice  that 

take  judicial  notice  of  the  streets  of  Bourn,  Burr.  42;  Brune  v.  Thompson, 

a  city  in  a  state  and  their  relation  to  2  Ad.  &  El.  789. 

each  other  and  the  direction  in  whicli  "'.Lewis  v.  Harris,  31  Ala.  689. 

they  run,  it  will  not  take  judicial  no-  ^°*  State  v.  Dunwall,  3  R.  I.  480. 

tice  whether   a   road  or   public   high-  ^"Thomas   v.    Stigers,   5    Penn.    St. 

way   outside    of    the    corporate    limits  480. 

of  the  city  is  within  five  miles  thereof.  '"- People  v.  Snyder,   41  N.  Y.   397. 

Stealer  v.  Kansas  Citv,  179  Mo.  400,  ^"^  j^oss  v.  Reddick,  2  111.  73;  State 

78  S.  *W.  599.               "                            '  V.   Tootle,     2    Marring.    (Del.)    541; 

°'Ledbetter    v.    Borland,    128    Ala.  Goodwin     v.    Appleton,    21    Me.    453; 

418,  29  So.   579.  Ham  v.   Ham,   39   Me.   2G3;    State  v. 

°*  Bowling   V    Mobile   &  M.   R.   Co.,  Jackson,  id.  291. 

128  Ala.  550,  29  So.  584.  ^"'Griffing  v.  Gibb.  2  Black   (U.  S.), 

"^  De  Baker  v.   Southern  California  519;   City  Council  of  Montgomery  v. 

Ry.  Co.,   106  Cal.  zo7,  39  P.  610,  46  M.  &  W.  Plank  Road  Co.,  31  Ala.  79; 

Am.   St.   Rep.   237.  Ham  v.  Ham,  39  Me.   263;   Chapman 

""People    V.    Truckee    Lumber     Co.,  v.  Wilber,  6  Hill   (N.  Y.),  475;  Bron- 

116  Cal.  397,  48  P.   374,   58  Am.   St.  son  v.  Gleason,  7  Barb.    (N.  Y.)    472. 

Rep.    183.  '"^  Brune    v.    Thompson,    2    Gale    & 

°' Vanderwerker  v.  People,  5  Wend.  D.  110. 

(N.  Y.)     530;    State    v.    Reader,    60  ^°°  Pearce  v.  Langfit,   101   Penn.   St. 

Iowa,  527.  507,   47   Am.  Rep.   737. 

»* Anonymous,  1  Chitty,  31;  Re.x  v.  "'Russell  v.  Hoyt,  4  Mont.  412. 


584  Evidence.  [Chap.  17 

there  are  or  are  not  tidal  streams  in  the  State,  as  the  fact  may 
be/^^  and  which  of  them  are  or  are  not  tidal  streams.  That  a  town 
in  the  State  is  in  a  certain  county,  and  if  such  is  the  fact,  that  it 
is  the  county  seat^°^  If  it  is  provided  in  a  public  statute  that  cities 
shall  be  divided  into  wards,  the  courts  of  the  State  will  take  judi- 
cial notice  that  they  are  so  divided ;  but  where  the  statute  merely 
provides  that  they  may  be  divided  into  wards,  courts  will  not  pre- 
sume that  they  have  been  so  divided.  Kor  will  the  court  presnme 
that  a  locality  having  the  requisite  number  of  inhabitants  to  enable 
it  to  become  a  town  under  the  provisions  of  a  public  statute,  has 
availed  itself  of  such  provision.^^"  Where  an  act  is  alleged  in  the 
pleadings  to  have  been  done  in  a  certain  town,  the  court  will  take 
judicial  notice  of  the  county  in  which  such  town  is  situated."^ 

The  Supreme  Court  of  Michigan  has  carried  the  doctrine  of 
judicial  notice  to  an  extreme  point  and  held  that  the  court  is 
bound  to  take  judicial  notice  that  a  box  freight  ear  standing  still 
at  a  railway  crossing  will  not  frighten  horses  of  ordinary  gentle- 

112 

ness. 

The  courts  will  take  judicial  notice  of  what  States  joined  the 
Confederacy  ;^^^  of  the  result  of  an  election  on  the  question  of  the 
removal  of  a  county  seat;^"  of  the  different  classes  of  notes  and 
bills  in  circulation  as  money,  at  a  particular  time;^^^  of  the  dis- 
turbed condition  of  business  in  war  times ;"®  of  the  issue  and  de- 
preciation of  Confederate  money  ;^^^  that  trains'  run  on  a  railroad 

"'  Walker  v.  Allen,  72  Ala.  456.  a  railroad  track  they  know  that  there 

^"*  Carson  v.  Dalton,  59  Tex.  500.  is  danger  to  them  there,  and  if  they 

""Hopkins   v.    Kansas,    etc.,   R.   R.  have  ever  seen  a  train  of  cars,  they 

Co.,  79  Mo.  98;   Temple  v.   State,   15  understand  that  it  is  moved  by  some 

Tex.  App.  304;  49  Am.  Rep.  200.  dangerous  agency,  and  when  they  see 

"^  State   V.   Reader,   60   Iowa,   527 ;  a    car   standing   on   a   track    near    a 

contra,  Clayton  v.  May,   67   Ga.   769.  crossing,  they  seem  to  expect  that  thi» 

See   also  Hoffman   v.   State,   12    Tex.  dangerous  agency   is   there   also,   and 

App.    406;    Boston    v.    State,    5    Tex.  they  indicate  this  belief  by  their  coa- 

App.  383.  duct.     I  feel  sure  that  there  are  very 

"'^  Gilbert  v.  Flint,  etc.,  R.  R.  Co.,  few  people  accustomed  to  the  use  of 

51  Mich.  488;    47  Am.  Rep.  592.  spirited,  but   perfectly  gentle   horses, 

This  case  seems  to   trench   sharply  whose   experience   would    sustain    the 

upon  the  province  of  the  jury,  and  if  court. 

its   doctrine   is   adopted,   there  would  "^  Dauthitt  v.  Stinson,  63  Mo.  268. 

seem  to  be  little  use  for  juries  in  the  "*  Andrews  v.  Knox  County,  70  HI. 

class    of    cases    to    which    it    applies.  65. 

Again,  in  our  judgment,  the  doctrine  "^Hart    v.     State,     55     Ind.     599  j 

is  not  sustained  by  human  experience;  Lumpkin  v.  Murrell,  46  Tex.  51. 

it   certainly   is   not  by  my  own,   and  "°  Foscue  v.  Lyon,  55  Ala.  440. 

seems  not  to  have  been  in  the  case  "^  Simmons   v.   Trumbo,   9   W,   Va. 

before   the   court.      Horses   are    Intel-  358. 

ligent  animals.     When  they  approach 


Sec  176.]  Judicial  Notice.  ^8^ 

are  run  and  controlled  by  the  owners  of  the  road ;-  of  authority 
given  to  a  county  to  subscribe  for  railroad  stock ;"«  of  public  acts 
?e,ulating  the  speed  of  railroad  trains;-  of  the  constitution  of 
another  State,  so  far  as  the  jurisdiction  of  its  courts  depends 
thereon.-     So  courts  will  take  judicial  notice  of  jbe  manner  in 
which  Confederate  money  was-  forced  upon  the  people  of  the  States 
under  tlie  Confederate  government;-     when  the  RebeUion  was 
terminated;-   of   previous  financial   depressions ;"    of   the   com- 
mencement and  duration  of  the  terms  of  the  circuit  cour,      and 
of  previous  proceedings  before  it  in  a  case  on  trial       bu    not  ot 
proceedings  before  it  in  some  other  ease  -  nor  of  the  rules  of  a 
lower  court ;-«  but  they  will  take  notice  of  the  different   erms.  of  a 
lower  court  of -a  county  or  district-  and  of  their  duration. 
Courts  will  not  take  judicial  notice  of  the  charter  of  a  savings 
bank  '''  nor  of  a  railroad  company/^^  unless  they  are  m  terms  mado 
public  acts.    A  court  will  take  judicial  notice  of  the  accuracy  and 
genuineness  of  its  own  record.-    A  State  court  will  not  take=  judi- 
cial notice  of  proceedings  in  a  federal  court,-  nor  that  any  person 
is  an  officer,  unless  he  is  elected  or  appointed  under  some  public 
statute  f'  but  it  will  take  judicial  notice  of  govemment^s-urveys' o± 
land    and  also  of  blocks  and  lots  in  towns  and  cities.        So  that 
the  termini  of  a  turnpike  road  laid  out  under  a  statute  so  requir- 
ing^ are  within  a  certain  county,  and  that  a  road  running  from  one 
terminus  of  such  turnpike  to  the  other  is  also  within  the  county. 
So  courts  will  take  judicial  notice  of  the  source  of  the    itle  to  all 
lands  within  its  juris'diction,  where  they  were  all  derived  from  the 


same  source  ^^^ 


me  source.  .    ,.  .  ,        ... 

In  Indiana  it  is  held  that  the  courts  will  take  judicial  notice 

,1,0     ^1        +„      -R     TJ     To     V     Pil-  '"Cutler  V.  Caruthers,  48  Cal.  178. 

"'South     etc.     R.    ^- ^«;    ;•    ;t  -Dorman  v.  State,  56  Ind.  454. 

green,  62   Ala^   ^?^ '  r^'?"'  09 '  '  -Spencer  v.  Curtis,  57  Ind.  221. 

'^^^Ps.Sh;:   TXooLco.;2Woods  J^Ma"<lere    v.    Bonsignove,    28    La. 

'""-laJn  v;^Chictgo,  etc.,   R.  R.  Co.,  ^J^^J^^I^J  ^^^  ^^'^^^^"^  ^^  ^^  ^"' 

38  „Wis    463.  ^""m  Robinson   v.  Brown,   82   111.  27!). 

:::grpfel"     me"'sbm#R    R    Co.,  -Haber  v.   Klauberg,   3  Mo.   App. 

^H-:-;-^^^;^^i£-406.  "|a--;- --v^-^-?K:  If. 

;::^SS;s^v^r fo il:: loi  ^ -^td t-  ^--^"- ''-' ^' 

B;:;fnr:an?r^Bu^^  g?^).^i^  ^^^'^rf  ^Stevens,    82    111.    554. 
"'  Banks  v.  Burnbam,  61  Mo.  76. 


586  Evidence.  [Cliap.  17 

that  during  and  since  the  civil  war  the  adjutant-general  has  made 
records  of  the  muster-rolls  of  the  regiments  furnished  the  United 
States,  and  a  duly  certified  copy  of  siich  a  roll  is  competent  evi- 
dence of  the  enlistment,  etc.,  of  a  volunteer,  in  an  action  by  him 
to  recover  a  bounty ;  and  such  copy  is  competent,  although  the  ad- 
jutant-general certifying  it  is  no  longer  in  office. ^^^ 

Evidence  in  the  record  that  a  town  has  assumed  to  act  as  a  vil- 
lage corporation,  in  the  passage  of  ordinances,  and  the  bringing  of 
suit  in  its  corporate  village  name,  and  that  an  offense  had  been 
charged  as'  committed  within  the  corporate  limits  of  the  "  village 
of  "  A.,  was  held  sufficient  to  warrant  the  court  in  taking  judicial 
notice  of  the  change  by  said  town  from  its  original  organization 
to  that  under  the  general  law,  without  proof  that  all  the  require- 
ments of  the  statute  had  been  complied  with.^'*'^ 

The  court  will  take  judicial  notice  of  the  population  of  a  county 
by  the  United  States  census\^"  The  court  in  ascertaining  the 
population  of  a  county  at  a  certain  date  will  take  judicial  notica 
only  of  the  last  official  census  and  cannot  recognize,  although 
morally  certain  of,  increase  since  that  date.^^^  The  Supreme 
Court  will  take  judicial  notice  of  the  population  of  a  county  ac- 
cording to  the  last  census,  in  determining  in  which  class  it  is 
placed  by  the  constitution,  in  order  to  regulate  the  fees  of  the 
clerkst  of  the  Circuit  Court."^ 

Where  a  public  act  expressly  recognizes  and  amends  a  private 
act,  courts  will  take  judicial  notice  of  the  existence  and  duties'  of 
an  office  provided  in  the  latter."* 

Judicial  notice  is  taken  of  the  custom  of  mutual  credits  under 
which  business  houses  furnish  each  other's  clerks,  or  customers, 
with  goods,  and  charge  them  to  each  other."^ 

Courts  do  not  take  judicial  knowledge  of  the  local  customs 
which,  under  the  United  States  statute,  entitle  prior  possessors 
to  a  right  to  use  water  for  mining  purposes',  etc. ;  the  claimant 
must  allege  and  prove  the  custom."® 

^*'  Monroe  County  Conim'rs  v.  May,  '"  Worcester    Bank    v.    Cheney,    9 1 

67  Ind.  562.  111.  430. 

""Doyle   V.    Bradford,   90    III.    41fi.  ^"  Lavalle    v.    People,    6    111.    App. 

"^  Board   of    Com'rs   v.   Garty,    161  157. 

Ind.  464,  68  N.  E.  R.  1012.  "=  Cameron  v.   Blackman,  39  Mich. 

^"  Adams  v.  Elwood,  176  N.  Y.  106.  108. 

68  N.  E.  R.  126.  "» Lewis  v.  McCIure.  8  Or.  273. 


Sec.  17Y.] 


Judicial  Notice.  ^^'^ 


Sec.  177.  Matters  of  Common  Knowledge. 

Courts  will  take  judicial  notice  of  all  matters,  tliat  are  a  part  of 
the  experience  and  common  knowledge  of  the  day  ;^  as  that  certain 
provinces  are  in  a  foreign  country,  and  that  they  have  govern- 
ments and  courts,  and  that  their  courts  proceed  according  to  the 
usual  course  of  the  common  law  ;^  but  not  when  the  governmen 
has  not  recognized  such  foreign  province  f  but  it  will  take  judicial 
notice  of  the  existence  of  such  province,  whether  it  has  been  recog- 
nized by  the  government  under  whose  jurisdiction  it  acts  or  not. 
So  of  wars  in  which  this  government  is  engaged,  whether  domestic 
or  foreig-n;^  but  not  of  wars  in  which  foreign  countries  are  en- 
gaffed ;«  nor  of  articles  of  war  unless  published  under  authority 
of  the  government;^  of  the  ix)litical  divisions  of  the  country  and 
the  location  of  States ;«  where  the  principal  rivers  of  the  btate  He, 
what  sections  they  traverse,  and  what  towns  or  cities  they  lie  m; 
of  the  geogi-aphical  position  of  falls  on  public  navigable  rivers,  and 
whether  there  are  or  not  pilots  appointed  on  it ;-  that  other  States 
have  constitutions,  and  of  their  provisions.''  ^ 

The  United  States  courts  will  take  notice  of  the  situation  o±  a 
port  in  a  foreign  countr)',  and  what  impediments,  if  any,  exist  m 
its  entrance,  and  whether  vessels  of  a  certain  draft  can  enter  it.  - 
The  court  will  take  judicial  notice  of  general  business  attairs 
and  of  the  manner  in  which  ordinary  business  is  conducted.  For 
example  the  court  will  take  notice  of  the  distinction  between  a 
clearance  card  and  a  letter  of  recommendation  given  by  a  railroad 
to  an  employee,'^  or  that  drawing  a  line  through  a  signature  is  the 
usual  way  of  cancelling  it,"  or  of  the  fact  that  but  a  small  percent- 
age of  certain  railway  passengers  avail  themselves  of  the  privi- 
leges of  transfer  and  stopover,'^  or  of  the  fact  that  a  telegraph  is 

1.-.,,   ,-    Wnlf    "?   Sandf    Ch.  » Citv  Council  of  Montgomery  v.  M. 

,  '^^^r^fr  &  W.   Plank  Road   Co..  ante. 

(NY.)   5/1.  ,0        ,^  ^,    Clarke  &  Co.,  7  Ind.  227. 

cooked!  w'ilsin^tEni  Law -^E,.  ^^'^  Butcher    v.    Brownsville,    2    Kan. 

''J'Grierson  v.   Eyrie,  9   Ves.   347-  ^^  The  PeterhofT,  Blatchford's  Prize 

^^?'t?pv  V    De   Berencrer,    3   M.   &   S.       Am.  St.  Rep.  296. 

Kex  V.   JJe   jseien^^i,    o  u  Samberg  v.  American  Express  Co., 

^^-  iTT-^i,  s    T     p     44-^  (Mich..   1904),  99  K  W.   879. 

;Rex   V.    Withers     5    T     «■    44-.  ^'^'^^l^^^^  ^  '^,„thern  Pacific  R.  Co., 

«Price   J.    Page,   24   Mo.    65,    Lit>  p^^    ^^^ 

Council   of  Montgomery  v.   M.  &   VA  •       i-**  '-^'• 

Plank  Road  Co.,  31  Ala.  79. 


588  Evidence.  [Chap.  17 

necessary  for  the  operation  of  a  railroad,  but  not  of  the  space  re- 
quired for  the  repair  of  such  a  telegraph,  the  latter  being  a  proper 
subject  of  expert  evidence.^^  So  the  courts  may  take  judicial 
notice  that  telegi-aph  poles  must  be  set  near  the  side  of  the  street 
or  road  and  that  they  are  generally  outside  of  the  curb  or  the  ditch 
line  and  therefore  necessarily  in  line  with  the  trees/'  or  in  a 
patent  case  that  hoppers  with  chutes  beneath  them  are  commonly 
used  for  gi-ain  elevators  and  other  purposes. ^^  The  court  may 
take  judicial  notice  of  the  history  of  banking,  showing  the  savings 
banks  with  special  charters  to  be  the  successors  of  the  former  State 
banks  of  circulation,^^  or  that  in  1895  the  current  rate  of  interests 
on  moneyed  securities  exceeded  one  and  three-quarters  i>er  cent.'" 
The  court  judicially  knows  that  contracts  for  a  water  supply 
although  containing  a  provision  for  forfeiture,  from  their  very 
character  are  so  necessary  and  urgent  to  municipal  existence  that 
they  will  be  carried  forward  by  some  one  if  not  by  the  original 
projectors.^^ 

The  court  will  take  judicial  notice  of  the  fact  that  all  taxes  on 
the  assessment  roll  are  never  collected  until  years  after  their  assess- 
ment,^^^  or  in  construing  a  regulation  of  automobiles  will  take 
judicial  notice  of  their  characteristics. ^^^ 

So  the  court  may  take  notice  judicially  of  well-knoA\ni  matters 
of  public  health  as  that  Texas  or  splenitic  fever  in  cattle  is  in- 
fectious or  contagious,^^  or  that  a  disease  called  "  yellows  "  exists 
in  the  State  which  is  very  dangerous  to  peach  trees,^^  or  that 
cigarettes  are  wholly  noxious  and  deleterious  to  health,^*  or  of  the 
fact  that  wine  is  an  intoxicating  liquor,-^  .or  of  the  nature  of  vac- 
cination,^® or  that  the  manufacture  of  wearing  apparel  in  unsani- 

'^P.  &  H.  H.  Youree  v.  Vicksburg  ="a  State  v.   Multy     (Wash,   1905) 

S.  &  P.  R.  Co.,   110  La.  791,  34  So.  82  P.  118.                                    '           /. 

779.  "bEx   parte    Berry,     (Cal..    1905) 

"Wyant   v.   Central    Tel.   Co.,    120  82  P    44 

Mich.  51    81  N.  W.  928,  81  Am.  St.  -Dorr  Cattle  Co.  v.  Chicago  &  G. 

S-J^C   T.-  An  ^       ,  .  '^'-    ^y-    Co.     (Iowa,    1905),    103    N. 

'*  Black   Diamond   Co.   v.    Excelsior       \v     1003 

Co„    156    U.    S.    611,    616,    15    S.    Ct.  -  State  v.  Main.  69  Comm.  123,  37 

^  ,;<.,    ,  T,       ,  ,.      ^        .      o  ^-  ^0-  61  Am.  St.  Rep.  30. 

btate    V.     Franklin    County   Sav-  =*  Austin    v     ^t^tp     im    Tor,„     r;RQ 

sn'^lSBo'^  ^'"^^  ^^^   ''  ^'    ''''  ''  S:'w!"05V70  Am'.  St'^r^os'"'' 

^ot^l^-         rp       ,  ^           ^  ,      •  "  Wolf  V.  State,  59  Ark.  297,  27  S. 

7-.  r          /.r".7'r\?n-  ^-  I^ol^erty,  W.  77,  43  Am.  St.  Rep.  34. 

-  r"-  •?!    '  w  /"•   ^f  •    ,      r.  "  Commonwealtn  v.  Pear,  183  Mass. 

^/lM^"7,'n\,^^^*^''    ^"PP^y    C°-     ^-  242,   66  X.   E.  R    719. 

Mobile,  112  Ala.  260,  20  So.  742,  57  .      .    <  i». 

Am.  St.  Rep.  28. 


Sec  1T8.J  Judicial  Is^otice.  589 

tory  apartments  is  likely  to  promote  the  spread  of  disease.^^  But 
the  court  will  not  take  judicial  notice  that  a  man  is  m  great  dan- 
ger of  catching  a  disease  called  glanders  by  coming  m  contract 
with  a  horse  having  that  disease  as  it  is  "  not  a  disease  so  fre- 
quently taken  by  man  as  to  permit  the  court  to  take  judicial  notice 
of  its  character."'^         , 

The  court  may  exercise  its  knowledge  of  the  well-known  re- 
sources of  the  State,  as  that  phospate  is  produced  in  &X)me  portions 
of  the  State  and  is  an  article  of  transportation/^  or  of  the  fact  that 
natural  gas  no  longer  exists  in  a  certain  district  in  sufficient  quan- 
tities to  supply  a  certain  city,  and  that  it  would  be  useless  to  sink 
a  well,'"  or  that  gas  or  oil  does  not  exist  under  all  ths  lands  withm 
the  recognized  gas  or  oil  district  and  that  there  is  no  other  gen- 
erally acknowledged  way  than  putting  do^^^l  a  well  to  determine 
whether  or  not  it  does  exist.'^ 

The  court  will  take  judicial  notice  of  the  laws  of  nature  and 
of  nature's  powers  and  forces  and  tliereafter  to  that  which  is  known 
as  electricity  and  of  its  properties ;  not,  of  course,  of  the  various 
methods  of  generating  and  transmitting  or  of  using  if,  but  of  the 
thing  itself  and  of  its  nature.''  The  court  does  not  know  judicially 
that  a  powder  magazine  may  not  be  constructed  so  as  to  insure 
absolute  security  from  lightning,  but  it  does  know  that  the  use  of 
dynamite  as  an  explosive  is  intrinsically  dangerous.'"  ^  So  in  an 
action  for  injury  from  the  explosion  of  natural  gas  which  the  de- 
fendant had  omitted  to  turn  off,  the  court  can  say  as  a  matter  of 
common  knowledge  that  the  injury  was  not  due  to  spontaneous 
combustion  and  that  it  was  impossible  without  some  agency  acting 
upon  the  leaking  gas.'^ 

Sec.  178.  Statutes  and  Common  Law  of  other  States.* 

While  courts  will  take  judicial  notice  of  all  the  public  statutes 
and  laws  of  the  State,  yet  they  will  not  take  judicial  notice  of  the 

«  State  V.  Hyman,  98  Md.  596,  57  130  Ind.   149,  28  N.  E.  849,  30  Am. 

A    6    11  St.  Rep.  214. 

'  estate  V.  Fox,  79  Md.  514,  29  A.  =' Kinney    v.    Koopman,     116    Ala. 

601    47  Am.  St.  Rep.  424.  310,  22  So.  593,  67  Am.  St.  Rep.  119. 

*'' State  V.   Atlantic   Coast   Line   R.  '*  Fitzsimmons    &     Connell     Co.    v. 

Co.   (Fla.,  1904),  37  So.  652.  Braun,  199  111.  390,  65  N.  E.  R.  249. 

«» State   V     Indianapolis     Gas     Co.,  «=  McGahan    v.     Indianapolis    Nat- 

(Ind     1904),  71  N.  E.  139.  ural  Gas  Co..  140  Ind.  335,  37  N.  E. 

"  Consumers     Gas     Trust     Co.     v.  601,  49  Am.  St.  Rep.  199. 

Littler,  162  Indiana,  320,  70  N.  E.  E.  a  As  to  proof  of  law  of  other  states 

363.  see  §§  194,  195,  post. 

^  City  of  Crawfordsville  v.  Braden,  ' 


590 


EviDEA^CE. 


[Chap.  17 


statutes  or  common  law  of  another  State,  but  any  person  relying 
upon  suck  statute  or  common  law  of  another  State  must  prove 
them,  as  any  other  fact  is  proved.-^ 

But  where  an  action  is  brought  upon  the  judgment  of  another 
State,  courts  will  tai:e  judicial  notice  of  the  laws  of  such  State,  so 
far  as  relates  to  the  judgment.^ 

In  the  absence  of  allegations  or  proof  to  the  contrary,  courts 
will  presTime  that  the  laws  of  another  State  or  country  are  similar 
to  those  in  the  State  in  which  the  action  is  tried,  and  if  different, 
the  party  relying  upon  the  distinction  must  prove  what  the  law 
really  is  in  the  State,  the  benefit  of  whose  laws  he  invokes.^ 

Some  courts  presume  that  the  statutes  of  another  State  are  the 
same  as  those  of  the  former,  in  the  abs'ence  of  proof,^  but  the  better 


'  Lloyd  V.  Matthews,  155  U.  S.  222, 
227,  15  S.  C.  70;  Schultz  v.  Howard, 
63  Minn.  196,  65  N.  W.  363,  56  Am. 
St.  Rep.  470;  Crandell  v.  Great  Nor- 
thern Ry.  Co.,  83  Minn.  190,  86  N. 
W.  10,  85  Am.  St.  Rep.  458;  Daven- 
port V.  Gannon,  123  N.  C.  362,  31  S. 
E.  858,  68  Am.  St.  Rep.  827;  Na- 
tional Bank  of  Commeroe  v.  Kervey, 
Texas,  ,  83  S.  W.  368;   Equi- 

table Bldg.  &  Loan  Assn.  v.  Kina^ 
(Fla.,  1904),  37  So.  181.  It  must  be 
asumed  that  the  law  in  England  as 
well  as  in  sister  States  is,  in  the  ab- 
sence of  proof  to  the  contrary,  the 
same  as  the  law  of  the  forum.  Wick- 
ersham  v.  Johnston,  104  Cal.  407,  38 
P.  89,  43  Am.  St.  Rep.  118.  The 
courts  of  one  State  cannot  take  judi- 
cial notice  of  the  constitution  or 
statutes  of  another  nor  of  their  inter- 
pretation by  the  highest  court  of  that 
State.  Murtey  v.  Allen,  71  Vermont, 
377,  45  A.  752.  76  Am.  St.  Rep.  779. 
There  is  no  presumption  that  the  law 
merchant  as  to  negotiable  instru- 
ments prevails  in  Turkey,  but  it  must 
be  proved  like  any  other  fact.  As- 
lanian  v.  Dostumian.  174  Mass.  328, 
54  N.  E.  845,  75  Am.  St.  Rep.  348; 
Chumasero  v.  Gilbert,  24  111.  293; 
Wood  et  al.  v.  O'Connor,  28  Vt.  776; 
Rape  V.  Heaton,  9  Wis.  328;  Char- 
lotte V.  Choteau,  25  Mo.  465;  Stokes 
V.  Macken,  61  Barb.  (N.  Y.)  145; 
Heathorn  v.  Shepherd,  1  Blackf. 
(Ind. )  159;  Anderson  v.  Anderson, 
25  Tex.  637;  Candit  v.   Blackwell,  4 


Green  (N.  J.),  193;  Brimhall  v.  Van 
Campen,  8  Minn.  IS;  Bemis  v.  Mc- 
Kenzie,  13  Fla.  553. 

^  Paine  v.  Schenectady  Ins.  Co.,  11 
R.  I.  411.  But  see  Hobbs  v.  Memphis, 
etc.,  R.  R.  Co.,  9  Heisk.  (Tenn.) 
873. 

'  Peter  Adams  Paper  Co.  v.  Cassard, 
206  Penn.  179,  55  A.  949;  Bemis  a. 
McKenzie,  13  Fla.  553;  Taylor  v. 
Boardman,  25  Vt.  581;  Stokes  v. 
Macken,  62  Barb.  (N.  Y.)  145;  An- 
derson V.  Anderson.  23  Tex.  639;  Folk 
V.  Folk,  id.  653;  Carey  v.  R.  R.  Co., 
5  Clarke  (Iowa),  357;  Fellows  v. 
Menasha,  11  Wis.  558;  Rape  v. 
Heaton,  9  Wis.  328;  Simms  v.  Ex- 
press Co.,  38  Ga.  129;  Hoyt  v.  Mc- 
Nill,  13  Minn.  390;  Stevens  v. 
Boomer  9  Humph.  (Tenn.)  546; 
Temple  v.  Hager,  27  Cal.  163; 
Hammond  v.  Inloes,  4  Md.  138; 
Palfrey  v.  Portland,  etc.,  R.  R.  Co.. 
4  Allen   (Mas.),  55. 

*Cavallaro  v.  Texas  &  Pacific  Ry. 
Co..  110  Cal.  348.  52  Am.  St  Rep.  94, 
42  P.  918;  Wilhite  v.  Skelton  (In- 
dian Territory),  82  S.  W.  932,  935; 
Goodwin  v.  Provident  Savings  Life, 
etc..  Association,  97  Iowa,  226,  66  N, 
W.  157,  59  Am.  St.  Rep.  411;  Bar- 
ringer  V.  Ryder,  119  Iowa,  121,  93  N. 
W.  56;  Mutual  Home  &  Savings  As- 
sociation V.  Worz,  67  Kan.  506,  73 
Pac.  116;  Chapman  v.  Brewer.  43 
Neb.  890,  62  N.  W.  320,  47  Am.  St. 
Rep.  779;  Welton  v.  Atkinson,  55 
Neb,  674,  76  N.  W.  473,  70  Am,  St. 


Sec.  178.] 


Judicial  ISTotice. 


591 


rule  would  seem  to  be  that  in  the  absence  of  proof  the  common 
law  is  presumed  to  prevail,  interpreted  as  in  the  forum,  except 
in  jurisdictions  governed  by  some  other  system  of  law,  and  that 
there  is  no  presumption  at  all  as  to  the  statutory  law. 

Where  some  items  of  costs  in  a  case  occurred  out  of  the  btate 
they  must  be  taxed  according  to  the  laws  of  the  forum,  where  the 
laws  of  the  foreign  jurisdiction  are  not  put  in  evidence.  Neither 
a  judicial  decision  nor  a  statute  of  another  State  will  be  judicially 
noticed  except  for  the  purpose  of  construing  the  laws  of  the  btate 

Rep    416;     Second  National  Bank  v. 
Sm^Lth,   118   Wis    18,   94   N.  W.   664; 
Edleman    v.    Edleman     (Wis.,    190o), 
104  N   W.  56.     "  It  may  be  well  said 
that,  as  we  judicially  know  no  other 
law   of   the   case   than   our   own,   the 
parties    litigant,    by    failing    to    pro- 
duce the  lex  loci  contracts,  impliedly 
acrree  that  it  is  the  same  as  the  lex 
fori     be    the    latter    common    law    or 
statute.     Thus,  it  may  be  regarded  as 
settled  in  this  State  that  when  a  con- 
tract,   made   in    a    State    or   country 
wherein   we   cannot   presume   the   ex- 
istence of  the  common  law.  is  sought 
to  be  enforced  in  the   courts  of   this 
State,  and  the  lex  loci  is  not  produced, 
we  will  apply  to  our  own  law."    Peet 
V    Hatcher,  112  Ala.  514,  21  So.  711, 

57   Am.    St.   Eep.    45.      But  see   Bir- 
mingham Water  Works  Co.  v.  Howe. 

121  Ala.  168,  25  So.  806,  77  Am.  St. 

Rep.  43.     But  even  in  Wisconsin  the 

presumption  as  to  statutory  law  will 

not  be  extended  to  statutes  penal   in 

nature.  St.  Sure  v.  Lindsfelt,  82  Wis. 

346,  52  N.  W.  308,  33  Am.   St.  Rep. 

50 

» Baltimore  &  O.  S.  W.  R.  Co.  v. 
Hollenbeck,  161  Ind.  452,  69  N.  E.  R. 
136.  exemption  laws;  Baltimore  & 
O  S  W  R.  Co.  V.  Adams.  159  Ind. 
688,  66  N.  E.  R.  45;  Penn.  Mutual 
Life  Insurance  Co.  v.  Norcross   (Ind., 

1904)     72  N.  E.  132;  Klenke  v.  Noo- 

nan,  '  Ky.     81     S.   W.    241;     Myers 

V.  Chicago,  etc.,  E.  Co.,  69  Minn.  476, 

72  N    W    694,  65  Am.  St.  Rep.  579; 

Encrstrand  v.  Kleffand,  86  Minn.  403, 

90  N.  W.  1054,  91  Am.  St.  Rep.  359; 

Hazen  v.  Mathews,  184  Mass.  388.  68 

N    E.  R.  838;   Baird  v.  Vines   (S.  D. 

1904)    99  N.  W.  R.  89;   In  re  Har- 
rington's Estate,  140  Cal.  244,  294,  73 


Pac    1000;   Rosemand  v.  Southern  Ry. 
66  S.  C.  91,  44  S.  E.  574. 

^  There  is  no  presumption  of  the  ex- 
istence   of    the    common    law    in    the 
State   of   Louisiana.        It   is    only   in 
those  States  having  a  common  origin 
or  populated  by  citizens  coming  from 
States  which  have  such  common  ori- 
gin that  the   presumption  of  the  ex- 
istence of  the  common  law  therein  ob- 
tains.    Louisiana  is  not  one  of  those 
States.        Peet  v.   Hatcher,    112   Ala. 
514,  21  So.  711,  57  Am.  St.  Rep.  45. 
But   the   law  of   Italy   as   to   the  va- 
lidity of  a  clause  in  a  contract  as  to 
the  exclusive  jurisdiction  of  courts  is 
presumed  to  be  like   that  of   Massa- 
chusetts.      Mittenthal    v.    Mascagni, 
183  Mass.  19,  66  N.  E.  R.  425. 

'Kelley  v.   Kelley,    161   Mass.   Ill, 
36  N.   E.  837,  42  Am.   St.  Rep.   389; 
Cherry  v.  Sprague,  187  Mass.  113.  72 
N    E    456;   Burdict  v.   Missouri   Pa- 
cific Ry.  Co.,  123  Mo.  221,27  S.  W. 
453,  45  Am.  St.  Rep.  528.     In  the  ab- 
sence of  evidence  it  will  be  presumed 
that  the  usury  law  of  another  State 
is  that   of   the  common  law  and  not 
that   the   laws   of   another    State   are 
like  the  statutes  of  the  forum  on  the 
subject   of   usury.     Columbian   Build- 
inc'    &    Loan    Association    v.     Rice, 
S^C,    47    S.  E.    63.      There    is    no 
presumption  that  the  statute  law  of 
another    State    is    the    same    as    the 
statute  law  of  the  forum  even  thougH 
the  State  of  the  forum  has  a  statute 
on  the  subject.       Meuer  v.  Chicago,, 
etc.,  Ry.  Co.,  11  S.  D.  94,  7o  N.  W. 
823,   74  Am.   St.  Rep.   774;   State  v. 
Shattuck,  69  Vermont,  403,  38  A.  81- 
60  Am.  St.  Rep.  936. 

«Dignan  v.   Nelson,  26  Utah,   186. 
72  Pac.  936. 


592  Evidence.  [Chap.  17 

of  the  forum  or  determining  what  they  are.®  But  when  the  laws  of 
the  State  in  which  the  trial  is  had  recognize  official  acts  done 
under  the  laws  of  another  State,  the  courts  of  the  State  recogniz- 
ing such  acts  will  take  judicial  notice  of  the  laws  of  such  other 
State,  so  far  as  is  necessary  to  determine  the  validity  of  the  acts 
alleged  to  be  in  conformity  with  them."  So  when  the  statutes  of 
another  State  upon  a  particular  matter  have  been  made  the  sub- 
ject of  a  judicial  decision  in  a  State,  the  courts  of  such  State  will 
take  judicial  notice  of  it,  and  if  the  statute  has  been  repealed  or 
altered,  proof  of  such  repeal  or  alteration  must  be  duly  made.^^ 
But  the  presumption  that  other  States  have  adojDted  the  same  laws 
does  not  extend  to  laws  imposing  a  penalty  or  forfeiture. ^^ 

When  laws  are  unwritten,  they  may  be  proved  by  parol;  but 
when  written  as  statute  laws,  they  must  be  proved  by  the  produc- 
tion of  the  laws  themselves. ^^ 

When  the  statute  of  another  State  has  been  incorporated  into 
an  act  of  congress,  it  will  be  recognized  without  other  proof. ^* 

When  the  laws  of  one  State  or  nation  are,  or  ever  have  been, 
operative  in  another,  as  where  a  Stats  has  formerly  wholly  or  in 
part  been  under  the  jurisdiction  and  laws  of  another  State,  the 
laws  then  in  existence  need  not  be  proved.  So,  too,  where  the 
State  has  formerly  been  under  the  jurisdiction  of  a  foreign  gov- 
ernment. The  federal  courts  will  judicially  notice  the  laws  pre- 
vailing in  a  part  of  the  country  before  cession  to  the  United  States, 
as  they  are  not  treated  as  foreign  laws.^°  Thus,  where  a  State  has 
formerly  been  under  Spanish  or  Mexican  government,  the  courts 
of  such  States  will  judicially  notice  the  laws  of  such  governments 
in  force  at  that  time,  so  far  as  necessary  in  the  action  pending 
before  it.^*    So  courts  will  take  judicial  notice  of  all  public  bodies 

•Ferd  Heim   Brewing   Co.   v.   Gim-  Tex.   203;   Brimhall   v.   Van   Campen, 

ber,  67  Kan.  834.  72   Pac.   859.     See,  8  Minn.   13;   Woodward  v    O'Connor 

also,  Poll  V.  Hicks,  67   Kan.   191,   72  28  Vt.  776.                                                 ' 

Pac.  847.  "  Flannigan     v.     Washington     Ins. 

"Carpenter  v.  Dexter,  8  Wall.    (U.  Co.,  7  Penn.   St.  306;   United  States 

S.)   513.  V.    Turner,    11    How.     (U.    S.)     663; 

"Graham  v.  Williams,  21  La.  Ann.  United  States  v.  Phila.  &  N    O     id 

.594.  684.                                                 ■      ■' 

"Hull   V.  Augustine.  23   Wis.   383:  "United   States  v.   Cboves    159   U 

Campion    v.    Kille.    2    McCarter     (N.  S.  452.  459.   16  S.  Ct.  57.      (Laws  of 

JJ,  476:   Cutter  v.  Wright.  22  X.  Y.  Mexico   noticed   as   affecting   title    to 

4/2;   Bilhngsbv  v.  Dean,  11  Ind.  331.  land  in  New  Mexico.) 

"Taylor  v.   Runvan,   9   Iowa,   522;  "Doe    v.    Eslaner.    11    Ala.    1028; 

Stevens      v.      Boomer,      9      Humph.  Choteau  v.  Pierre,  9  Mo.   3;      Ott  v 

(Tenn. )    546;      Crosby   v.    Huston,    1  Soulard,  id.  581.   '             '      '. 


Sec.  ITS.]  Judicial  Notice.  593 

incorporated  by  the  State/^  or  of  all  acts  of  incorporation  made 
public  by  statute. ^^ 

The  common  law  of  all  the  States  is  presumed  to  be  the  same, 
and  if  different,  it  must  be  proved  by  the  evidence  of  some  person 
familiar  with  it,'^  Or  the  court  may  act  upon  its  own  knowledge 
of  the  law  of  another  State,  and  if  it  errs  as  to  its  knowledge  there- 
of, the  judgment  will  be  reversed.^"  But  the  United  States  courts 
are  presumed  to  know  the  laws  of  the  several  States,  and  will  take 
judicial  notice  thereof. ^^ 

In  the  case  of  isolated  and  peculiar  nations  not  holding  diplo- 
matic relations  with  this  country,  parol  evidence  will  be  received 
as  to  its  laws,  but  such  evidence  will  only  be  allowed  as  conclusive 
when  it  is  so  direct  and  positive  as  to  leave  no  doubt  or  ambigu- 
ity.^^    State  courts  will  take  judicial  notice  of  all  public  acts  of 
congress,''  and  pamphlets  issued  by  government  containing  them 
may  be  read  f  and  of  laws  relating  specially  to  the  State  in  which 
the  trial  is  had;''  and  of  a  decision  of  the  United  States  Supreme 
Court  as  to  the  validity  under  the  federal  constitution  of  a  State 
law  f  and  of  all  treaties  made  with  foreign  governments,  and  of 
the  power  of  the  president  under  the  same,  but  not  whether  the 
powers  under  it  have  been  exercised."  So  of  the  survey  of  lands  in 
the  State  under  acts  of  congress,  and  the  dedication  of  portions  of 
them  to   certain  purposes.'^     Whether  courts  will   take   judicial 
notice  of  acts  of  congress  relating  only  to  the  District  of  Columbia 
quere}^    And  when  a  transaction  otherwise  lawful  is  unlawful  by 
reason  of  provisions  in  acts  of  congress,  the  court  will  dismiss  the 

"Jones  V.  Fales,  4  Mass.  245.  "Hammond  v.  Inloes,  4   Md.   138; 

^8Russell    V     Branham,    8    Blackf.  White  v.  Guirons,  Minor   (Ala.),  331 ; 

(Ind  )    277  Temple  v.  Hagar,  27  Cal.  163;  Anon- 

"  Warner    v.    Lusk,     16    Mo.     102;  ymous,    fuller's    N.     P     222 ;      Bur- 

Nunno  v    Davis    7   Tex.   26;      Bcmis  mand  v.  Nirat,  1  C.  &  P.  578;     Bird 

V.  McKe^'.zie,   13'  Fla.   553;    Stokes  v.  v.  State   2iGratt.(VaO    800;.Adm'r 

Macken,  62  Barb.   (N.  Y.)   145.  v.   Chubb,   16   Gratt.  284 ;   Wright   v. 

»»  State  V.  Delesdinier,  7  Tex.  26.  Hawkins,  28  Tex.  452 ;     Buchanan  v. 

"    Jasper  v.  Porter,  2  McLean    (U.  Whitman,  36  Ind.  257. 

S  )      579-   Merrill    v.    Dawson,    Hunt  =' Papin  v.  Ryan,  32  Miss.  21 

(U'  S  )     563-   Jones  v.  Hays,   4  Mc-  »' State  v.  Bates,  22  Utah,  65,  61  P. 

Lean    (U     S.),   521;      Wadsworthv.  905,  83  Am.  St.  Rep.  768. 

Snafford    2  id    168  "Dale    v.    Wilson,    16    Mmn.    525; 

"Wilcox   v'  Phillips,   Wallace,   Jr,  Carson  v.  Smith,  5  id.  78;  Montgom- 

(U    S  )   47  ery  v.  Duley.  3  Wis.  709. 

"Metropolitan    Stock    Exchange   v.  ^' Dickenson  v.  Bruden    30  111.  279; 

Lyndonville   Nat.   Bank,    70   Vt.    303,  Atwater  v.  Schonck^  8  Wis.  160. 

57  A.   101;  Kansas  City  M.  &  B.   R.  =^"  Adm'r  v.  Chubb,  16  Gratt     (Va  ) 

Co    V    Flippo,    138   Ala.   487,   35   So.  284,     yes;       Wright     v.     Paton,     10 

457_    ■         ^^  Johns.   (N.  Y.)   300,  no. 

38 


594 


Evidence. 


[Chap.  IT 


action,  even  though  the  point  is  not  raised  by  the  defense.""  So,, 
too,  courts  will  taJie  judicial  notice  of  the  laying  out  and  survey- 
ing of  lands  under  acts  of  congress,  and  of  the  method  of  their 
boundaries  and  descriptions;^^  and  of  the  geographical  divisions 
of  the  State  when  necessary  to  the  determination  of  a  question.^^ 
So  the  federal  court's  will  take  judicial  notice  of  State  public 
laws'. ^^  Courts  are  bound  to  know  the  rules  of  the  Court  of  Chan- 
cery f*  s'o  their  own  rules  f^  but  not  the  rules  of  another  court,^^' 
or  a  scale  of  fees  adopted  by  it  under  the  provisions  of  a  statute.^ 

Xor  of  the  rules  and  regulations  adopted  by  any  public  board 
or  body,  whether  national  or  State,  but  such  regulations,  if  relied 
upon,  must  be  proved.^^  Nor  of  the  rules  or  regulations  of  any 
church  or  society. ^^  Nor  of  the  customs  or  regulations  of  any  par- 
ticular trade.^"  Courts  will  take  judicial  notice  of  the  time  when 
State  and  national  laws  go  into  effect.^^  So  of  theip  repeal,  or  any 
changes  therein.*^  All  acts  found  among  the  public  laws,  bearing 
the  governor's  signature,  are  presumed  to  have  been  constitution- 
ally passed.*^ 

All  acts  of  the  legislature  are  presumed  to  have  been  constitu- 
tionally passed,  and  so  far  as  extrinsic  evidence  is  concerned,  this 
presumption  is  conclusive.^* 

But  in  Illinois'  it  is  held  that  the  contrary  may  be  proved  by  the 
production  of  a  duly  certified  copy  of  the  legislative  journal,  but 
not  by  reference  to  the  original  journal,  as  the  courts  do  not  take 


•"Kessel  v.  Albertis,  56  Baib.  (N. 
Y.)    362. 

"  Buchanan  v.  Whiteman,  36  Ind. 
25;  Atwater  v.  Schenck,  9  Wis.  160; 
Dickenson  v.  Breeden,  30  111.  279. 

*^  Hinckley  v.  Becwith,  23  Wis. 
328;  Fancher  v.  De  Montagne.  1 
Head.  (Tenn.)  41;  Mossman  v.  For- 
rest, 27  Ind.  333 ;  Commissioners  v. 
Spetter,  13  Ind.  235;  Winnepisseogee 
Lake  Co.  v.  Young.  40  N.  H.  420; 
King  V.  Kent,  29  Ala.  542;  Martin 
V.  Martin,  51  Me.  3G6;  Gilbert  v.  Mo- 
line,  19  Iowa,  319;  Rock  Island 
V.  Steele,  31  111.  543. 

=*  Union  Pac  R.  Co.  v.  Wyler,  15S 
U.  S.  28.3,  296,  15  S.  Ct.  877. 

'*  Carter  v.  Pratt,   9  Md.  67. 

^'Cherry  v.  Baker,  17  Md.  75; 
Pugh  V.  Robinson,  1  Tenn.  118. 


'°  Scott  V.  Scott,  17  Md.  78;  Van 
Sandan  v.  Turner,  L.  J.    (U.  S. )    154. 

"Pilkington  v.  Cooke,  17  L.  J. 
141. 

^'Hensley  v.  Tarpey,  7  Cal.  288; 
Palmer  v.  Aldridge,  16  Barb.  (N.  Y.) 
131. 

^^  Young  V.  Ransom,  31  Barb.  (N. 
Y.)   49. 

""Dulch  &  Co.  V.  Mooney,  12  Cal. 
534. 

"State  V.  Bailey,  16  Ind.  46; 
Heuston  v.  Cincinnati,  etc.,  R.  R. 
Co.,  id.  275;  Berliner  v.  Waterloo, 
14  Wis.  378;  Attorney-General  v. 
Foote,  11  id.  14. 

*"  State  V.  O'Connor,  13  La  An, 
486. 

«I1].  Cent.  R.  R  Co.  v.  Wren,  4.1 
111.   77;   Bedard  v.  Hall,  44  id.  91. 

"People  V.  Mahany,  13  Mich.  481. 


Sec.  179.]  Judicial  Notice.  595 

judicial  notice  of  sucli  journals  or  of  their  genuineness."'  So 
courts,  take  judicial  notice  of  the  maritime  law.''^  Courts  will  not 
take  notice  of  the  rates  of  interest  in  another  country  or  State, 
nor  in  the  absence  of  proof  will  they  presume  that  interest  ^ 
allowed  upon  a  contract,  note  or  other  obligation,  made  m  sudb 
country  or  State."''  . 

The  court  may  take  judicial  notice  of  the  fact  that  the  civil  law 
is  the  basis  of  the  law  of  Mexico  as  a  matter  of  history,  but  will 
not  take  judicial  notice  of  details,  as  of  the  duration  of  infancy 
in  Mexico."* 

Sec.  179.  As  to  Judicial  Records. 

Courts  will  take  judicial  notice  of  their  own  records  and  of 
their  genuineness,'  and  of  the  records  in  a  case  on  trial.^    The  Ap- 
pellate court  will  take  judicial  notice  that  a  certain  person  who 
signed  a  judicial  record  was  the  judge  of  a  lower  court  m  the 
State.^    On  a  motion  to  dismiss  an  appeal  the  signature  of  a  party 
waiving  notice  of  appeal  will  be  judicially  noticed.    The  court  will 
not  judicially  notice  the  signature  of  a  party  unaccompanied  by 
proofs  of  its  genuineness  when  it  is  sought  to  show  thereby  the 
service  of  an  original  process,  but  after  the  party  has  once  ap- 
peared  in  an  action  his  signature  may   be  judicially   noticed.* 
But  they  will  not  in  one  case  take  judicial  notice  of  the  record 
in  another  case  pending  in  the  same  court.'    Nor  that  other  suits 
are  pending  in  the  same  court  involving  the  same  questions.®    Nor 
of  the  pendency  of  actions  in  the  federal  courts  to  settle  the  same 
questions.'^    Nor  will  they  take  judicial  notice  of  anything  outside 
the  record.     Hence  when  the  record  does  not  show  that  a  declara- 
tion was  filed  in  the  cause,  it  will  not  be  presumed  that  one  was 
filed.*    Nor  will  they  take  judicial  notice  that  a  nolle  pros,  or  con- 

"Grab   V.    Cushman,    45    III.    119;  *  State  v.  Bates   22  Utah,  65,  61  P. 

Coleman  v.  Dobbins,  9  Ind.   156.  905'  83  Am    St  Rep    768;   Pagett  v. 

« Chandler  v.  Graves,  2  H.  Black-  Curtis    15  La    Ann    551 

stone   606  Fisher  v.  City  of  Chicago,  213  111. 

"Ingram  v.  Drinkard,  14  Tex.  351;  268    72  N.  E.  680 

Cooke  V.  Crawford,  1  id.  9 ;   Cavender  « Tischner    v     Rutledge,    35  Wash. 

V.  Guild,  4  Cal.  250;   Ramsay  v.  Mc-  285    77  Pac.  388. 

Cawley.  2  Tex.  189.  '  People  v.  De  La  Guerre,   24   Cal. 

*'  Banco  de  Sonora  v.  Bankers'  Mut.  73.                 ,,       ,       „.  x          n 

Casualty   Co.,    124   Iowa,   576,   95    N.  » Lake      Merud      Water       Co.       v. 

W    '^3''  Cowles,  31  Cal.  215. 

'  Stable   V.    Postlethwaite,    14    Iowa,  '  Vassault  v.  Seitz    31  Cal.  225. 

44(,;   State  v.  Schilling,  id.  455.  'Dart  v.  Lowe,  5  Ind.  131. 


596  Evidence.  [Chap-.  17 

viction  was  entered  by  them  in  an  action  in  another  county.^  But 
a  pleading  to  which  a  demurrer  is  taken  may  be  aided  by  ths  court 
taking  judicial  notice  of  certain  well-known  facts  insufficiently 
alleged  in  the  pleading  and  necessary  to  it.^"  In  an  action  upon  a 
judgment  for  alimony  rendered  in  another  State  the  State  court 
will  take  judicial  notice  that  under  the  laws  of  the  other  State  the 
court  rendering  the  judgment  had  jurisdiction  to  do  so.^^ 

United  States  courts  will  take  judicial  notice  that  a  discharge  in 
bankruptcy  has  been  regularly  obtained.^^  Courts'  will  not  take 
judicial  notice  of  the  genuineness  of  the  signatures  of  the  parties  in 


Sec.  1 80.  Miscellaneous  Matters. 

The  courts  will  take  judicial  notice  of  the  contents  of  the  Bible, 
that  the  religious  world  is  divided  into  numerous  sects  and  of  the 
general  doctrine  that  is  maintained  by  the  different  sects,  that 
some  of  the  sects  believe  in  the  doctrine  of  predestination  and  apos- 
tolic succession,  while  some  do  not.^  Even  though  the  plaintiff 
claims  that  a  child  of  two  years  of  age  had  earning  capacity  of 
value  to  its  parents,  the  court  can  take  judicial  notice  that  a  child 
of  such  tender  years  could  have  no  earning  capacity.^  The  courtmay 
fake  judicial  notice  that  $50  is  a  reasonable  attorney's  fee  for  the 
collection  of  a  note  on  which  $268  is  due,^  or  that  "  brass 
knuckles  "  is  an  instrument  which  may  be  made  of  other  metals 
than  brass,^  but  not  of  the  weight  of  artificial  legs  on  the  question 
of  damages- for  personal  injuries.^  It  has  been  held  the  jury  could 
not  assume  without  testimony  to  aid  them,  that  an  electric  car 
could  be  stopped  in  a  distance  of  one  hundred  and  fifty  feet.^ 

The  courts  take  notice  of  the  meaning  of  English  words,   as 

•  State  V.  Edwards,  19  Wis.  674.  ^  Southern  Railway  Co.  v.  Covenia, 

^•De  Baker  v.   Southern  California  100  Ga.  46,  29  S.  E.  219,  62  Am.  St. 

Ry.  Co.,   106  Cal.  257,  39  P.   610,  46  Rep.  312. 

Am.  St.  Rep.  237.  » Warnock       v.       Itawis        (Wash.. 

"  Trowbridge  V.  Spinning,  23  Wash.  1905),    80    Pac.    297.      Cf.    note    30, 

48,  62  P.   125,  83  Am.  St.  Rep.  808;  infra. 

Kunze  v.   Kunze,  94   Wis.   54,   68  N.  *  Louis  v.  State,  36  Tex.  Crim.  Reo. 

W.  391,  59  Am.  St.  Rep.  857.  52,   35   S.   W.   377,   61   Am.    St.   Reu. 

"Lathrop    v.    Stewart,    5    McLean  832. 

(U.  S.),  167.  "Carrow  v.   Barre   R.    Co.,   74    Yi. 

"Alderson  v.  Bell,  9  Cal.  315.  176,  52  A.  537. 

'  State  V.  District  Board.  Edgerton,  °  Kotila    v.    Houghton    County    St. 

76  Wis.   177,  44  N.  W.   967,  20  Am.  Ry.  Co.,  134  Mich.  314,  96  N.  W.  437. 
St.  Rep.  41. 


59' 


Sec.  180.]  Judicial  Notice. 

"  tomatoes,"  and  upon  such  a  question,  dictionaries  are  admitted, 
not  as  evidence,  but  only  as  aids  to  the  memory  and  understand- 
ino-  of  the  court.^  The  court  will  take  judicial  notice  of  customary 
abbreviations  of  all  kinds,  so  a  will  dated  '^  Nov.  22,  '97,"  is  prop- 
erly dated  within  a  statutory  requirement,^  and  the  court  will  take 
iudicial  notice  of  the  meaning  and  effect  of  the  letters  ^  ±  o.  b 
used  in  mercantile  contracts.*  While  the  court  will  judicially 
notice  all  the  vernacular  which  is  part  of  the  English  language,  a 
custom  to  use  certain  signs  in  description  of  real  estate  will  not 
be  admissible  in  evidence  although  claimed  to  extend  over  two 

States  ■^^ 

Standard  mortality  tables,  as  the  Carlisle  tables,  may  be  given 
in  evidence,  as  bearing  upon  the  probable  length  of  life  of  an  indi- 
vidual, and  will  be  judicially  noticed  as  authoritative,     whether 
they  were  introduced  in  evidence  or  not,^  and  without  proof  of 
their  correctness,^^  as  the  court  is  presumed  to  know  them  wlien- 
ever  it  sees  them."    A  State  court  will  take  judicial  notice  of^the 
existence  and  jurisdiction  of  an  inferior  court  m  the  State      or 
of  the  district  of  a  certain  justice  of  the  peace.^^    Courts  will  not 
take  judicial  notice  of  the  place  of  intersection  f/^treet  m  a 
city  with  a  railroad  track ;"  nor  of  the  meaning  of     C.  U.  U.    ;  ^ 
nor  that  kerosene  oil  is  a  refined  coal  oil  or  a  refined  earth  oil. 
But  under  the  rule  that  courts  will  take  judicial  notice  of  matters 
well  established  in  the -arts  and  sciences,  there  seems  to  be  no 
good  reason  why  they  should  not  judicially  know  what  everybody 

'Nix  V.  Hedden,  149  U.  S.  304,  307,  ^^^^^"^^f^^^  P^^^'"'  ^'^  ^^  ^^  '^^' 
''.Ist^a^e'of  Laken^eyer,  135  Cal.  28,  J  W^^^e™  &  A  R.  Co.  v.  Cox,  115 
66  P.  961,  87  An.Jt.  Rep        •     See        Ga.  715,^42  S^  E.J4^  ^  ^^^^^  ^^    ^ 

^-^"^'iy^iS^^-  ^T^^-^::l  f08Vc^;  59. 

.:\^^V-«9n''"             ^  13  S   EflC8,  23  Am.  St.  Rep.  73. 

100  N.  W.  820.  le  Russell  v.  Huntsville  Ry.  Light  & 

"  Power  V.  Bowdle    d  N    IJ.   107,  &*  ^^^    34  g^   ggg 

N.  W.  404,  44  Am.  St    Rep.  511.  it  Pennsylvania    Co.    v.    France,    13 

"Steinbrunner    v.    Pittsburg,    etc.,  1'^  91     People  v.  Callahan,  23 

fi,  ".8'im    SrS-ep'toB.  wLTthe       How^7n.  Y.)  ^58.^  But  see  Brady  v. 

Electric  Lighting   Co.    (R.    1.,   1904),  C.  P.),  471. 

59   A     393;     Nelson,  Adm'r  v.   Bran-       Ins.  Co.,  8  Daly   1^.   1.  «-  r.;, 
ford  Lighting  &  Water  Co.,  75  Conn. 
548,  54  A.  303,  305. 


598  Evidence.  [Chap.  17 

else  knows,  that  kerosene,  an  article  so  extensively  used,  is  a  re- 
fined coal  or  earth  oil.  But  there  seems  to  be  no  fixed  rule  upon 
which  courts  act  in  determining  these  questions,  but  they  seem  to 
act  according  to  their  peculiar  caprices.  Thus,  in  most  of  the 
States  it  is  held  that  courts  will  take  judicial  notice  that  lager  beer 
is  a  malt  liquor  and  is  intoxicating,^"  but  in  others,  although  they 
take  judicial  notice  that  whiskey  is  intoxicating,^^  yet  they  will 
not  take  judicial  notice  that  malt  liquors  are,^^  and  yst  the  one 
fact  is  ag  generally  known  and  as  well  established  as  the  other. 
The  United  States  courts  take  judicial  notice  of  the  character, 
construction  and  use  of  a  manufactured  article  which  has  been  in 
use  for  many  years,  such  as  an  ice-cream  freezer,  etc.^^  So  it  has 
been  held  that  courts  will  take  judicial  notice  of  the  art  of  photog- 
raphy, the  mechanical  and  chemical  process  employed,  the  scien- 
tific principles  on  which  they  are  based,  and  their  results'.^*  So, 
too,  they  would  doubtless  take  judicial  notice  that  opium,  arsenic, 
prussic  acid,  etc.,  are  deadly  poisons,  but  the  knowledge  of  these 
facts  is  no  more  general  than  that  kerosene  is  a  coal  oil,  or  that 
malt  liquors  are  intoxicating.  Courts  will  not  take  judicial  notice 
of  facts  not  in  themselves  of  judicial  cognizance,  as  that  Daniel 
Webster  does  not  reside  in  the  State  of  New  York,^^  but  will  take 
judicial  notice  that  "  beer  "  is  a  malt  and  intoxicating  liquor,^® 
and  the  same  is  true  as  to  "ale,""  "  strong  beer,"^^  "  lager  beer,"^® 
or  any  species  of  liquors  which  common  experience  has  demon- 
strated are  intoxicating.  The  courts  will  not  take  judicial  notice 
of  the  value  of  an  attorney's  services  in  a  case  tried  before  it;^* 
nor  what  is  a  fair  and  reasonable  or  usual  commission  on  accept- 
ances f^  nor  of  the  ordinary  abbreviation  of  proper  names.^^  But, 
contra,  see  where  it  was  held  that  a  note  signed  "Christ.   A." 

=«  State   v..  Gazette,    11    R.   I.   592;  "  Nervin  v.  Lader,  3  Den.    (N.  Y.) 

Adler  v.  State,  55  Ala.   16;     Watson  437. 

V.  State,  55  id.  158.  '^^  Comm's  v.  Taylor,  21   N.  Y,   173. 

"Schlicht   V.    State,    56    Ind.    173;  '' Rau    v.    People,    63    N.    Y.    277; 

Carman  v.  State,  18  Ind.  54.  State  v.  Gazette,  11  R.  I.  592;     Com. 

"Shaw  V    State,  55  Ind.  188;   Peo-  v.  Anthes,  12  Gray   ^Mass.),  29. 

pie  V.  Halt,  24  How.  Pr.  (N.  Y.)   289.  s"  Pearson    v.    Darrington,    32    Ala. 

"  Brown  v.  Piper,  91  tJ.  S.  37.  227.     Cf.  note   3,  supra. 

=^  Lake  V.  Calhoun  Co.,  52  Ala.  115.  *' Seymour    v.     Morrow,     11     Barb. 

'=  Wheeler    v.    Webster,    1     E.     D.  (N.  Y.)   80. 

Smith    (N.  Y.   C.  P.),   1;      Wilkie  v.  ^^  Weaver    v.    McElhenon,     13    Mo. 

Bolster,  3  id.  327.  89;   Stephens    v.    State,    11   Ga.   225; 

'"Bri'ffitt  V.    State,   58   Wis.    39,   46  Russell  v.  Martin,  15  Tex.  238. 
Am.  Rep.  46;      People  v.  Whilock,  3 
Parker's  Cr.  (N.  Y.)  9. 


Sec.  180.] 


Judicial  Kotice.  ^^9 


would  be  treated  as  a  note  signed  "  Christoplier  A. ;"  but  will  of 
•ordinary  abbreviations  of  common  words,  as  that  "  adm'r  "  stands 
for  '^  administrator  ;"^='  but  not  that  "John  Smith"  and  "Hon. 
John  Smith  "  are  the  same  person ;  but  identity  of  name  is  vrima 
facie  evidence  of  identity  of  person/"  and  a  certificate  of  birth, 
death  or  marriage  from  the  proper  office  is  admissible  as  evidence, 
without  proof  that  the  person  named  in  the  certificate  is  the  same 
in  refsrence  to  whom  the  certificate  is  to  be  used  ag  evidence. 
The  identity  of  name  is  pWma  facie  proof  of  identity  of  person, 
and  if  not  so  in  fact,  the  opposite  party  must  prove  it.'^     But 
courts  outside  the  State  in  which  a  place  is  located  will  not  take 
judicial  notice  that  it  is  outside  the  State,  as  that  "  New  York  " 
is  not  in  the  State  where  the  trial  is  had  f  or  that  "  l^ew  Orleans  " 
is  in  the  State  of  Louisiana  f  or  that  "  St.  Louis  "  is  in  the  State 
of  Missouri  f  or  that  a  note  payable  at  "  New  Orleans,  La.,"  is 
payable  in  New  Orleans,  State  of  Louisiana  f  nor  that  "  Dublin  " 
is  in  Ireland."'    But  the  courts  of  England  do  judicially  know  that 
"  Geelong,  Colony  of  Victoria,"  is  a  place  outside  of  England.*^ 
Forms  of  attestation  in  other  States  must  be  proved."'    Quantities 
of  land  contained  in  certain  courses  and  distances  must  be  shown."" 
Courts  will  not  take  judicial  notice  that  a  woman  past  49  years  of 
age  is  past  child-bearing."'     Courts  will  not  recognize  a  private 
seal,  whether  of  an  officer  or  a  private  person."'     They  will  take 
notice  of  the  seasons,  and  of  the  time  when  certain  agricultural 
products  mature,  and  when  the  season  of  harvesting  arrives,"^  but 
not  of  the  vicissitudes   incident  thereto."^     So  of  the  ordinary 
course  of  transactions  of  human  life,  and  whatever  ought  generally 
to  be  known,  as  the  peculiar  nature  of  lotteries  and  how  they  are 
generally  carried  on."*    But  this  is  so  only  when  the  lotteries  exist 
by  virtue  of  State  laws.     The  age  of  a  person,  if  material,  must 

''Moseley's    Adm'r    v.    Masten,    37  "Trigg      v.      Conway,      1      Hemp. 

Ala    216  (Tenn.)   538. 

-Ellsworth    V.     Moore,     5     Clarke  :Tis°"  .Y.^'^^th    8  Tex.  147 

(Iowa),  486.  «Overhill's  Trusts,   In  re,   17   Eng. 


255 


3=  Gitt  V.  Watson,  18  Mo.  274.  Law  &  Eq.  323.  on    xt     w 

3"  Hubbard  V.  Lees,  L.  R.   1  Exchq.       ^  "Beach    v.    Worlcnian,    20    N.    R 

379;   Barrett   Nav.   Co.   v.   Shower,   8 


a^Bradshaw  v.  Mayfield,  18  Tex.  21.  Dowl.    (C    P.)    173;   HI    Cent.   R.   R. 

3' Ri- "ins  V    Collier,  6  Mo.  568.  Co.  v.  Johnson,  40  HI.  35. 

3»E;iTs  V    Park,  8  Tex.  205.  ;;  Floyd  v.  Ricks    14  Ark    286. 

-Russell  V.  Martin,  15  Tex.  238.  Dixon  v.  Nicho  s    39  111    3/2 

"  Kearney  v.  King,  1  Chit.  28.  "  Boullemet  v.  State,  28  Ala.  83. 
*^  Cooke  V.  Wilson,  1  C.  B.   (N.  S.) 
153. 


600  Evidence.  [Chap.  17 

be  proved.^"  On  the  trial  of  an  issue  directed  by  a  court  of  equity, 
the  judge  before  whom  the  trial  is  had  will  take  judicial  notice 
of  the  terms  of  the  order. ^^  So  of  the  day  of  the  week  on  which 
a  certain  day  of  the  month  was;^^  that  a  child  bom  two  months 
after  marriage,  when  the  husband  had  not  access  to  the  mother  be- 
fore marriage,  is  not  his  child  ;^  on  what  day  the  king  died  -^  of 
the  general  law  of  bankers,  and  that  they  have  a  lien  on  the  securi- 
ties of  their  customers  for  advances  made  or  services  rendered  ;^^ 
that  rain  falls.^^  Courts  will  not  take  judicial  notice  of  what  is 
meant  by  the  words  "  whaling  voyage  "  in  a  policy  of  insurance," 
but  it  will  of  the  meaning  of  words  in  certain  usual  and  common 
combinations.^^ 

Sec.  i8i.  Pleading  of  Statutes  Relied  on. 

If  a  party  relies  upon  a  statute  either  as  a  ground  of  action  or 
defense,  he  must,  notwithstanding  the  fact  that  it  is  a  public  stat- 
ute of  which  the  court  takes  judicial  notice,  set  forth  in  his  dec- 
laration, or  in  his  pleadings,  such  facts  as  bring  him  clearly  with- 
in the  provisions  of  the  statute,  or  if  in  defense,  where  no  special 
plea  is  required,  show  such  facts  as  bring  his  case  wnthin  the  stat- 
ute, and  if  there  are  any  exceptions  or  provisos  in  the  act,  he  must 
show  negatively  that  the  matter  pleaded  is  not  within  the  provisos 
or  exceptions,^  unless  the  proviso  or  exception  is  in  a  subsequent 
substantive  clause  or  statute,  and  is  not  connected  with  the  enact- 
ing clause  by  any  word  of  reference,  in  which  case  it  is  a  matter 
of  defense  for  the  other  party,  and  need  not  be  negatived  in  the 
pleadings.^  As  the  court  cannot  take  judicial  notice  of  the  stat- 
utes of  another  State  it  follows  that  the  averments  of  those  stat- 
utes in  a  complaint  are  binding  on  demurrer.^  Where  the  enact- 
ing clause  of  a  statute  makes  an  exception  to  the  general  provis- 

■"•  Stephenson  v.  State,  28  Ind.  27.  "  Bap.    Church    v.    Brooklyn    Fire 

*Wood   V.    Thompson,    1    C.   &  M.  Ins.    Co.,    28  N.   Y.    153;      Downs  v. 

171.  Sprague,  2  Keyes,  57. 

"Hanson    v.    Shackleton,    4    Dowl.  '  Gill  v.  Scrivens,  7  Durnford  &  E. 

(P.  C.)   48.  27. 

"  Rex  V.  LuflFe,  8  East,  202.  »  Rex  v.  Jukes,  8  D.  &  E   542  •  Rex 

"Henry  v.  Cole,  2  Ld.  Raym.  811.  v.   Hall,    1   id.   320;   Steele   v    Smith 

"  Barnett   v.    Brandon,    6   M.   &   G.  1  B.  &  Aid.  94. 

^^£-  'Hancock   National   Ban^c   v.   Ellis, 

"'Fay  V.  Prentice,  14  L.  J.   (N.  S.)  166  Mass.  414,  55  Am    St    Rep    414 

298.  41  N.  E.  349. 

"Child  V.   Sun  Mutual   Ins.   Co.,  3 
Sandf.  (N.  Y.)  26. 


Sec.  181.]  Judicial.  JSTotice.  601 

ions  of  the  act,  a  party  pleading  the  provisions  of  the  statute  must 
negative  the  exception,  but  when  the  exception  is  contained  in  a 
proviso,  and  not  in  the  enacting  clause,  the  party  pleading  the 
statute  need  not  negative  the  exception.  It  is  for  the  other  party 
to  set  it  up  in  avoidance  of  the  other  provisions  of  the  statute.* 
A  pleading  setting  forth  tlie  cause  of  action  or  defense  in  the  lan- 
guage of  the  statute  relied  on,  is  sufficient,''  and  he  need  set  forth 
no  more  facts  or  circumstances  than  are  necesisary  to  support  the 
pleading  under  the  statute.*" 

There  is  still  another  matter  which  should  be  borne  in  mind, 
and  that  is,  that  where  a  statute  gives'  a  remedy  where  none  ex- 
isted at  common  law,  or  where  it  makes  an  act  lawful  which  is  not 
so  regarded  at  common  law,  the  party  must  state  in  his  pleadings, 
and  show  upon  the  trial  such  a  state  of  facts  as  brings  his  case 
clearly  within  the  provisions  of  the  statute  as  well  as  all  the 
amendments!  thereto.  But  where  the  statute  is  only  declaratory  of 
a  common-law  right,  and  in  aid  thereof,  unless  it  in  some  way 
varies  the  standing  or  rights  of  parties  in  court,  the  statute,  or  any 
circumstances  bringing  the  party  within  the  provisions  thereof, 
need  not  be  stated  in  the  pleadings,  but  otherwise  when  the  stat- 
ute gives  any  rights  additional  to  the  common-law  right,  or  varies 
or  changes  the  status  of  the  parties.^ 

In  actions  brought  upon  a  general  or  public  statute,  the  declara- 
tion should  state  such  facts  as  bring  the  case  within  the  statute, 
and  should  state  that  the  act  complained  of  is  contradictory  to  the 
statute  in  such  casesi  made  and  provided  f  but  if  the  facts  and  cir- 
cumstances set  forth  in  the  pleading  are  sufficient  to  show  that  the 
act  charged  is  in  point  of  fact  contrary  to  the  statute  relied  on, 
the  omission  of  the  words  "  contrary  to  the  form  of  the  S'tatute," 
will  not  be  treated  as  a  defect.^  It  is  the  substance,  and  not  the 
form  of  the  pleading,  that  controls,^"  and  the  statute  need  not  be 
set  forth  or  named  in  the  pleadings,  as  the  courts  are  bound  to  take 
judicial  notice  of  the  statute,  and  whether  the  facts  set  forth  in 

*  Muller's  Case,  4  Ct.  of  Claims  (U.  51  111.  94;  Eyan  v.  State,  32  Tex. 
S.),  61-;  McGlone  v.  Prosser,  21  Wis.  280;  Hastings  v.  Cunningham,  39 
273;   Lynch  v.  People,  16  Mich.  472.         Cal.  137. 

» Gunter  v.  Dale  Co.,  44  Ala.  639.  ^  Lee  v.  Clarke,  2  East,  332. 

•  Hewitt  V.  Harvey,  46  Mo.  368.  "  Hewett  v.  Harvey,  46  Mo.  368. 
'Note  2  to  Dupa  v.  Mayo,   1   Wm.  "State  v.  Dehlinger,  46  Mo.   106. 

Saunders,   276;  Erlinger  v.   Bouceau, 


602  Evidence.  [Cliap.  17 

the  pleadings  are  sufficient  to  sustain  an  action  or  defense 
under  it.^^ 

If  the  action  or  defense  is  predicated  upon  the  statute  of  another 
State,  the  s'tatute  relied  upon  must  be  set  forth  with  distinctness,  so 
that  the  court  can  say  upon  inspection  of  the  plea  what  the  effect 
<^f  the  law  is,  and  a  pleading  that  simply  avers  that  by  the  laws 
of  the  State  where  the  contract  was  made,  certain  results  would 
ensne,  is  not  an  averment  sufficient  to  support  any  proof  as  to  what 
the  fact  is/^ 

In  all  actions  brought  upon  a  private  statute,  the  act  must  bo 
recited,  and  such  facts  stated  as  disclose  a  right  of  action  under 
it,  and  no  more  of  the  act  will  be  noticed  by  the  court  than  is  set 
forth  in  the  declaration ;  and  the  same  is  equally  true  as'  to  the 
pleadings  where  tlie  statute  is  relied  upon  in  defense  to  an  action.^^ 

In  all  cases  where  the  statute  is  set  forth  either  in  the  declara- 
tion or  pleadings,  great  care  should  be  observed  to  set  it  forth 
correctly,  as  in  the  case  of  a  misrecital  of  a  general  statute  advan- 
tage may  be  taken  of  it  either  by  general  demurrer,  motion  in 
arrest,  or  by  writ  of  error,  if  the  error  is  in  any  wise  material,  and 
the  defect  is  not  cured  by  verdict.  But  it  seems  that  the  mis- 
recital  must  be  of  matter  which  goes  to  the  ground  of  the  action, 
or  the  defect  will  be  cured  by  verdict." 

In  the  case  of  a  material  misrecital  of  a  public  act,  the  court 
cannot  give  judgment  even  with  the  consent  of  the  parties,  for  the 
reason  that  the  courts  are  bound  to  take  notice  of  all  public  acts, 
and  to  know  that  the  statute  is  not  as  set  forth  in  the  pleadings. ^^ 

So,  too,  care  should  be  taken  never  to  recite  a  public  statute 
when  its'  recital  is  unnecessary,  for  if  it  is  recited,  and  incorrectly 
set  forth,  the  misrecital  is  fatal  if  in  a  material  matter  ;^^  for  if 
a  party  undertakes  to  set  forth  a  statute  in  his  pleading,  a  misre- 
cital is  fatal. 

But  if  the  misrecital  is  immaterial  or  only  a  trifling  variance, 


"McHarry  v.  Eastman,  7  Rob.  (N 
Y.)    137. 

"Hoyt  V.  McNeil,  13  Minn.  390 
Eoots  V.  Merriweather,  8  Busli 
(Ky.),  397. 

"Kirk  V.  Nowell,  1  D.  &  E.  125 
Hewett    V.    Harvey,    46      Mo.      106; 


"Love  V.  Walton,  Cro.  Eliz.  24.5. 
See.  also,  State  v.  Jarrett,  17  Mo. 
309,  where  it  was  held  tliat  where  a 
bill  in  equity  contradicts  the  pio- 
visions  of  a  public  statute,  the  court 
will  take  judicial  notice  thereof,  al- 
though   the    question    is    not    raised 


Gunter  v.  Dale  Co..  44  IMo.  (')3!).  upon  trial. 

"  Rex  v.  Marsack,  6  D.  &  E.  776.  "  Boyee  v.  Whittaker,  Doug.  97. 


603 


Sec.  181.]  Judicial  ISTotice. 

the  rule  is  otherwise,"  as  if  a  party  refers  to  the  wrong  section 
of  a  public  act  in  his  pleading,  which  is  evidently  a  clerical  error 
it  is  wholly  immaterial,  as  the  court  is  bound  to  take  judicial 
notice  of  the  stat\ites,  and  hence  is  bound  to  know  whether  the  facts 
set  forth  are  a  ground  of  action  or  defense  under  any  'part  of  the 
statute;  but  if  the  party  rscites  the  portion  of  the  statute  m  his 
plea,  the  rule  would  be  othei-wise.^^ 

In  all  cases  where  the  action  or  defense  is  predicated  upon  a 
private  act,  so  much  of  the  act  as  is  relied  on  must  be  accurately 
set  forth  in  the  pleadings,  and  it  is  generally  better  to  set  it  forth 
in  mec  verba,  and  if  there  is  a  misrecital  of  the  act,  advantage 
must  be  taken  of  it  by  pleading  nul  tiel  record,  or  by  demurrer, 
as  the  court  can  take  judicial  notice  of  no  more  of  the  act  than  is 
recited  in  the  pleadings.^^  Nul  tiel  record  should  not  be  pleaded 
when  the  defect  is  in  reference  to  such  matters  as  the  court  judi- 
<.ially  notices,  but  only  of  such  defects  as  go  to  the  matter  or  sub- 
stance of  the  act;  all  other  defects  should  be  taken  advantage  of 
by  demurrer. ^"^ 

Public  acts  need  not  be  proved,  as  the  courts  are  bound  to  know 
^heir  provisions;  but  if  nul  tiel  record  be  pleaded  private  acts 
must  be  proved  by  an  exemplified  copy  of  the  act,^^  or  by  tlie  pro- 
duction of  a  printed  copy  thereof,  printed  by  the  State  printer.^ 
When  a  private  act  is  duly  certified  under  the  seal  of  the  State,  it 
cannot  be  impeached  by  the  legislative  journals.^^  And  it  is  not 
competent  for  the  court  in  an  ordinary  civil  suit  inter  partes  to 
permit  any  inquiry  to  be  made  into  the  correctness  of  the  Revised 
Statutes  duly  certified  and  deposited  in  the  office  of  the  secretary 
of  State,  and  that  such  statutes,  so  certified,  import  absolutely 
verity,  as  the  records  of  the  legislature.^'' 

Public  acts,  being  general  laws,  are  presumed  to  be  known  to 
every  person,  as  well  to  the  the  jury  as  to  the  court,  and  need  not 
be  proved;  but  private  acts  must  be  proved  by  a  duly  exemplified 
copy,''  or  by   a   copy  printed  by  the  king's  printer   and  under 

"Goodwin  V.  West,  Cro.  Car.  522;  where    the    practice    in    reference    to 

Anonymous?  2  Ventri^,  215.  pleading    private    acts    is    thoroughly 

"McHarvy    v.    Eastman,    7     Robt.  discussed. 

/XT   vriQ7  "Anonymous,  2  Salk.  56G. 

^  ^»Sprinl  V.  Eve,  2  Mod.  241;  Piatt  "Rex  v.  Shaw    j^  East   497. 

v.gS,  l^I^^,.Wn;ond    382.  T^Hex  v.  Arundel    HoK  H^O.  ^ 

v.   wStlice^^'Do'u  .'97:  ^Se'c^aTs^:  =M  PMHips  on  Ev.  364;   1   Starkie 

Moulson   V.   Redshaw,    1    Saund.    193,      on  Ev.  163. 


,604  Evidence.  [Chap.  17 

authority.^*  And  this  extends  to  laws  of  a  foreign  country  when 
they  are  found  in  the  statutes  of  that  country,  accompanied  with 
proof  of  their  official  publication;^^  and  the  laws  of  another 
State.^^  But  the  book  must  be  authenticated  under  the  seal  of  the 
secretary  of  State.^^ 

»•  Eex  V.  Shaw,  12  East,  479.  "  Zimmerman    v.    Helsler,    32    Md. 

"O'Keefe  v.   United   States,  5    Ct.      274. 
of  Claims,  674.  "  Babcock  v.  Babcock,  46  Mo.  243. 


CHAPTER  XVIII. 

BuEDEN  OF  Proof. 

Section  182.  General  object  of  evidence. 

183.  Fraud.  ... 

184.  Burden  as  to  negative   propositions. 

185.  Presumption  of   innocence. 

186.  Burden  in  case  of  lost  notes. 

187.  Who  is  to  begin. 

i88.  Who  begins  in  action  to  recover  lanas. 
189.  Right  to  reply. 

Sec.  182.  General  Object  of  Evidence. 

The  object  of  evidence  is  to  establish  the  issues  between  the  par- 
ties, and  to  this  end  three  general  rules  must  be  observed:  1st, 
the  evidence  must  he  confined  to  the  issue;  2d,  only  the  substance 
of  the  issue  need  he  p-oved,  and  3d,  the  hurden  of  proof  tus 
upon  the  party  asserting  an  affimative  fad.  unless  it  is  supported 
by  some  adequate  presumption.^     This  must,  however,  be  under- 
stood as  applying  to  a  material  and  substantial  issue,  and  is  a  rule 
which  rests  upon  the  broad  ground  of  protection  to  the_  rights  of 
parties,  and  has  for  its  base  that  sound  public  policy  which  courts 
ever  regard  with  strict  exactness.     Mere  convenience  either  o± 
parties  or  courts  is  not  generally  allowed  to  weigh    against  actua 
ri-hts,  and  the  better  reason  for  the  rule  would  seem  to  be,  that 
when  a  person,  by  an  allegation  in  his  declaration  or  plea   asserts 
that  which,  if  true,  shows  a  legal  right  in  him  to  recover  damages 
of  another,  or  which  shows  a  legal  and  valid  excuse  against  an  ap^ 
parent  legal  claim,  public  policy  and  the  protection  of  the  rights  o± 
parties  require  that  the  party  making  such  an  allegation  should 
take  the  burden  of  its  support,  otherwise  the  rights  of  parties 
would  be  in  constant  jeopardy  by  their  being  compelled  to  dis- 
prove issues  without  foundation  or  validity. 

The  term  "  burden  of  proof  "  is  used  in  different  senses.  In 
one  sense  the  term  marks  or  expresses  the  burden  or  duty  of  the 

^Pussev  V  Wright,  31  Penn.  St  v.  Colmes,  2  Miss.  121;  Thompson 
^87Sti-an  V  Mohawk,  etc.,  R.  v.  Lee,  8  Cal.  275;  Nash  v.  Hall  4 
R  Co  2  Den  (N  Y  )  609;  Powers  Ind.  444;  Stevenson  v.  Maroney,  29 
V.' Russell,  13  Pick.  (Mass.)   69;  Kyle      111.  582. 

( 605 ) 


606 


Evidence. 


[Chap.  18 


actor  or  party  "wlio  has  the  risk  or  affirmative  of  the  is'sue  and  will 
lose  the  case  if  he  does  not  in  the  end  establish  such  issue.  In 
another  sense  tlie  term  means  or  expresses  the  burden  or  duty  of  a 
party,  in  order  to  succeed,  of  going  forward  at  any  particular 
stage  with  the  evidence,  and  really  means  that  the  burden  isi  upon 
him  to  establish  the  particular  claim,  while  the  burden  of  the 
issue — that  is,  the  burden  of  proof  in  the  s^nse  of  ultimately  prov- 
ing or  establishing  the  issue  or  case  of  the  party  upon  whom  such 
burden  rests,  as  distinguished  from  the  burden  or  duty  of  going 
forward  and  producing  evidence — never  shifts,  but  the  burden  or 
duty  of  proceeding  or  going  forward  often  does  shift  from  one 
party  to  the  other,  and  sometimes  back  again.  In  general,  th,e 
party  who  seeks  to  move  a  court  in  his  favor,  whether  as  an  origi- 
nal plaintiff  or  as  a  defendant,  who  by  admitting  plaintiff's  con- 
tention and  setting  up  an  affirmative  defense  becomeg  the  real 
actor,  must  establish  his  claim.^ 

The  real  test  by  which  to  determine  upon  whom  the  burden  of 
proof  lies  is  to  be  found  by  ascertaining  which  party  would  be 


''United  States  Wringer  Co.  v. 
Cooney,  214  111.  o20,  73  N.  E.  803. 
The  burden  of  proof  in  its  proper 
sense  does  not  ordinarily  shift  from 
one  party  to  the  other  so  long  as  the 
parties  remain  at  issue  upon  a  propo- 
sition affirmed  upon  the  one  side  and 
denied  upon  the  other.  So  where  .a 
contestant  of  a  will  shows  varioua 
circumstances  tending  to  show  undue 
influence,  as  that  a  certain  party 
benefited  from  the  will  and  was  in 
close  confidential  relations  to  the  tes- 
tator, this  evidence  is  properly  con- 
sidered by  the  jury  but  it  does  not 
shift  the  burden  of  proof.  This  bur- 
den upon  the  whole  evidence,  in  view 
of  the  situation  referred  to  and  of 
the  other  circumstances,  is  still  upon 
the  contestant  who  is  to  sustain  the 
proposition  confirmed  by  him  by  a 
preponderance  of  all  the  evidence. 
Such  evidence  does  not  raise  a  pre- 
sumption of  law  of  undue  influence  as 
the  issue  is  one  of  fact  and  the  court 
disapproves  of  a  statement  that  any 
particular  evidence  is  sufficient  to 
change  the  issue  from  one  of  fact  to 
one  of  law.  Appeal  of  O'Brien 
(Maine,  1905),  60  A.  880.  The  term 
"burden   of    proof"    is   an   ambiguous 


vv-e.  It  may  be  used  to  indicate  the 
burden  which  rests  on  every  party  to 
a  cause,  presenting  a  claim  for  relief 
or  pleading  in  avoidance,  of  going 
forward,  if  he  be  met  by  a  traverse, 
and  establishing  what  is  well  defined 
by  an  authoritative  writer  on  the  law 
of  evidence,  who  has  done  much  to- 
ward setting  it  in  scientific  form,  a3 
"the  total  proposition  or  series  of 
propositions  which  constitute  his  dis- 
puted case."  Thayer's  Preliminary 
Treatise  on  Evidence,  380.  It  may 
also  be  used  to  denote  a  duty  cast  by- 
law upon  one  party  to  meet  and  rebut 
the  effect  of  some  piece  of  evidence 
introduced  by  the  other,  by  proof  of 
what  may  suffice  to  overbear  it  in 
the  mind  of  the  trier.  Baxter  v. 
Camp.  71  Conn.  245,  41  A.  803,  71 
Am.  St.  Rep.  169.  The  phrase  is  also 
commonly  used  indiscriminately  to 
denote  either  or  both  of  the  above 
uses.  Thayer's  Preliminary  Treatise, 
355.  There  has  been  much  confusion 
caused  by  a  failure  to  distinguish  be- 
tween the  Durden  of  proof  and  the 
weight  of  evidence.  The  burden  of 
proof  is  always  upon  the  party  as- 
serting a  fact  as  the  basis  of  his  ac- 
tion  or   defense,  and  it  never   shifts 


See.  182.]  Burden  of  Proof.  COT 

entitled  to  a  verdict  if  no  proof  was  offered  on  either  side,  for  the 
burden  lies  upon  him  against  whom  the  verdict  should  be  given 
in  such  a  case  ;^  and  when  the  burden  lies  upon  a  party,  he  is 
bound  to  prove  each  and  every  circumstance  essential  to  charge  the 
other  party  in  the  same  manner  as  if  the  whole  issue  rested  upon 
him,  whether  plaintiff  or  defendant  ;*  and  the  issue  must  be  sup- 
ported by  him  by  a  fair  balance  of  evidence,  s'O  that  a  conclusion 
can  fairly  be  drawn  in  his  favor  by  the  jury,  or  the  verdict  must 
be"  for  the  other  party. 

If  the  burden  of  proof  lies  upon  the  plaintiff  or  defendant,  it 
cannot  be  changed  and  thrown  upon  another  by  the  form  of  plead- 
ing.^ Indeed,  it  is  never  the  form,  but  the  substantive  allegations,, 
of  the  pleadings  that  determine  the  burden  of  proof,®  and  while  in 
civil  actions  the  burden  of  proof  may  be  shifted  in  certain  cases, 
yet  in  criminal  cases  this  never  occurs  except  when  the  respondent 
attempts  to  justify  his  crime.''  Where  the  general  issue  is  pleaded 
the  onus  is  upon  tbe  plaintiff  of  proving  every  material  allegation 
of  the  complaint.  No  evidence  is  properly  admissible  in  behalf  of 
the  plaintiff  which  does  not  tend  to  support  the  averments  of  the 
complaint  and  the  defendant  is  limited  to  evidence  in  disproof  of 
such  averments.^ 

during  the  progress  of  the  trial.    The  burden   is   upon   A.   to   prove   all   tlie 

weight    of     evidence,    however,    may  facts   essential   to  show   that  B.   wan 

change  according  to  the  necessities  of  really  guilty  of  negligence  as  charged 

the   case  in   overcoming  the   eviden-e  by  A.   in   his   declaration;   and   B.    is 

introduced    by    the     opposite     party.  not  required  to  put  in  negative  proof 

Rupp  V.  Sarpy  County   (Neb.,  1905.),  unless   these  facts   are   legally   estab- 

102  N.  W.  242.  lished,    that    is,    established    by    full 

'Veiths    V.    Hagge,    8    Iowa,    163;  proof    of    negligence,    such    as    would 

Kent  V.  White,  27   Ind.  390;   Ford  v.  render    him     liable    for     the    results 

Simmons,  13  La.  Ann.  397.  charged.     When    the   proof   of    A.    n 

*  Spaulding  v.  Harvey,  7  Ind.  all  in,  in  those  States  in  which  a  non- 
429;  Henderson  v.  State,  14  Texas,  suit  is  permissible  without  the  con- 
403;  Brandon  v.  Cabiness,  10  Ala.  sent  of  the  parties,  the  remedy  is  to 
155.  move   for   a   non-suit   on    the   ground 

'■  State  V.  Melton,  3  Mo.  417.  that  the  evidence  fails  to  support  the 

°  Loring      v.      Steinman,      1      Met.  declaration;      but     in     those     States 

(Mass.)    204.  where  the  courts,  by  statute,  are  not 

'Com.    V.    Dana,    2    Met.     (Mass.)  permitted    to    non-suit    the    plaintiff, 

329 ;      Com.     v.     Kimball,     24     Pick.  the  remedy  should  be  sought  by  mov- 

(Mass.)    336.  ing   for   a   verdict   for    the   defendant 

*  Blankenship  v.  Blackwell,  124  upon  the  ground  that  the  evidence  is 
Ala.  355,  27  So.  551,  82  Am.  St.  Rep.  not  sufficient  to  sustain  the  declara- 
175.  tion.       In  a  Massachusetts  case,  Lor- 

As   illustrative   of   the    rule,   if   A.  ing  v.  Steinman,  1  Met.   (Mass.)   204,. 

sues  B.  in  an  action  for  personal  in-  the  court  expressly  held  that  it  wa.9 

juries   received   by   him   by  reason   of  incumbent   upon   him   who  takes   the 

some  act  negligently  done  by  B.,  the  affirmative  of  an  issue,  whether  under 


608 


Evidence. 


[Chap.  18 


A  defendant  setting  up  matter  in  mitigation  of  damages,  takes 
the  burden  of  establishing  fully  the  mitigating  circumstances  re- 
lied on  f  so  where  matter  in  justification  is  plead/"  or  matter  in 
avoidance/^  or  in  bar. 

If  a  party  sets  up  matter  in  avoidance^^  or  justification/^  or 
special  matters  in  defense,  the  burden  rests  upon  him  to  egtablish 


a  declaration  or  plea,  to  maintain  the 
issue  raised  by  him  by  competent 
proof;  and  where  the  burden  lies  upon 
one  party  of  proving  an  issue,  he  cannot 
change  it  or  throw  it  upon  the  other 
party  by  any  system  of  pleading. 
State  V.  Melton,  8  Mo.  417.  Thus,  in 
an  action  for  the  non-performance  of 
a  contract,  the  burden  is  upon  the 
plaintiff  to  prove  the  non-perform- 
ance by  full  proof,  and  failing  in  that, 
the  defendant  is  entitled  to  a  verdict. 
McGregory  v.  Prescott,  5  Cush. 
(Mass")  67.  So  where  a  breach  of 
the  performance  of  a  contract  is  al- 
leged by  a  declaration  or  plea,  the 
party  setting  it  up  is  charged  with 
the  burden  of  proving  it.  Edmonds 
V.  Edmonds,  1  Ala.  401. 

» Murrell  v.  Whiting,  32  Ala.  54. 
"  VVinans  v.  Winans,  19  N.  J.  220. 
"Gray  v,  Gardner,  17  Mass.  188; 
Brown  v.  Woodbury,  5  Ind.  254; 
Attleborougli  v.  Middleborough,  10 
Pick.  (Mass.)  378;  Jewett  v.  Davis, 
6  N.  H.  518. 

Where  a  defendant,  in  an  action  on 
a  promissory  note  by  an  indorser,  de- 
nies that  the  note  has  been  indorsed 
to  the  plaintiff  before  maturity,  and 
therefore  claims  the  benefit  of  ariy 
equities  attacliing  in  his  favor  against 
the  payee,  he  takes  the  burden  of 
proving  the  allegation,  and  the  plain- 
tiff is  not  bound  to  show  when  the 
indorsement  was  in  fact  made,  the 
law,  in  the  absence  of  proof,  presum- 
ing that  it  was  made  before  maturity. 
Hopkins  v.  Kent,  17  Md.  113;  Davis 
V.  Bartlett,  12  Ohio  St.  534.  The 
same  is  also  true  when  the  defendant 
sets  up  in  his  plea  that  the  payee  of 
the  note  is  not  the  owner  of  the  same, 
but  has  indorsed  it  to  another  who  is 
the  real  owner,  Vanbuskirk  v.  Levy, 
3  Met.  (Ky. )  133;  so  where  want 
of  consideration  is  alleged,  the  burden 
rests  upon  the  defendant  to  establish 
it,  the  law  presuming,  where  a  con- 
sideration  is   expressed  therein,   that 


it  was  given  for  a  full  and  valid  con- 
sideration, until  the  contrary  la 
proved;  Gilbert  v.  Duncan,  29  N.  J. 
L.  521;  Quimby  v.  Morrill,  47  Me. 
470;  Thomas  v.  Quick,  5  Blackf. 
(Ind.)  334;  Towsey  v.  Shook.,  3  id. 
267 ;  so  where  the  consideration  is 
claimed  to  be  illegal,  Brigham  v.  Pot- 
ter, .14  Gray  (Mass.),  522;  Trustee.-! 
v.  Hill,  12  Iowa,  402;  Solomon  v. 
Dreschler,  4  Minn.  278;  Dykers  v. 
Townsend,  24  N.  Y.  57 ;  Craig  /. 
Proctor  6  R.  I.  547;  Kidder  v.  Nor- 
ris,  18  N.  H.  532;  or  usurious;  Ivei 
V.  Farmers'  Bank,  2  Allen  (Mass.), 
236;  Engler  v.  Ellis,  16  Ind.  475; 
Hale  v.  Hazleton,  21  Wis.  320;  and 
this  must  be  by  strict  proof,  and  evi- 
dence is  not  admissible  to  prove  that 
the  party  making  the  loan  is  a  usurer, 
Jackson  v.  Smith,  7  Cow.  (N.  Y.) 
717;  so  where  a  note  is  sued  upon, 
purporting  to  be  signed  by  an  agent, 
the  burden  of  proof  is  on  the  defend- 
ant to  show  want  of  authority. 
Thompson  v.  Abbott,  11  Iowa.  193. 

When  the  holder  of  a  note  seeks 
toL  avoid  want  of  protest  and  notice 
to  the  indorser,  the  burden  is  on 
him  to  establish  the  waiver  of  notice 
or  other  legal  excuse  or  a  promise  to 
pay  with  full  knowledge  of  his  non- 
liability, Ballin  v.  Betske,  11  Iowa, 
204;  so  the  burden  of  establishing 
payment  of  a  note  or  performance  of 
an  admitted  contract  is  on  the  de- 
fendant. Caulfield  v.  Sanders,  17  Cal. 
469;  McKinney  v.  Slack,  15  N.  J.  L. 
220;  Edmonds  v.  Edmonds,  1  Ala. 
401;  Irwin  v.  Gernon.  18  La.  Ann. 
228;  McLendon  v.  Hamblin,  34  Ala. 
46;  Buzzell  v.  Snell.  25  N.  H.  474. 

"Brown  v.  Woodbury,  5  Ind.  254; 
Attleborough  v.  Middleborough,  10 
Pick.  (Mass.)  378;  Gray  v.  Gardner, 
17  Mass.   188. 

^«  Winans  v.  Winans,  19  N.  J.  Eq. 
220;  Treadwell  v.  Joseph,  1  Sum. 
(U.  S.)    390. 


Sec.  182.] 


BUKDEN  OF  PkOOF. 


609 


the  facts  requisite  to  support  his  plea/*  as  want  of  consideration 
where  a  consideration  is  expressed  in  or  implied  from  the  con- 
tract/^ usury^®  and  other  similar  defenses.  But  the  rule  is  other- 
wise as  to  pleas  of  the  Statute  of  Frauds,  limitations  and  defenses 
of  that  character,"  and  the  plaintiff  is  bound  to  show  facts  which 
avoid  the  effect  of  the  plea.  Where  the  plaintiff  shows  a  debt  the 
burden  is  on  the  defendant  to  prove  its  payment  even  though  the 
plaintiff  may  be  obliged  to  allege  a  non-payment  in  his  complaint.^' 
Where  the  defendant  interposes  a  counterclaim  asking  an  afEnna- 
tive  judgment,  he  has  the  burden  of  proof ,^^  and  so  of  set  off,^° 
recoupment,^^  a  plea  to  the  jurisdiction,^^  or  a  plea  of  estop- 
pel by  judgment.^^  As  in  an  action  of  tort  for  negligenee,  the  de- 
fendant may  under  a  general  denial  show  the  contribut<3ry  negli- 
gence of  the  plaintiff,  this  is  not  an  affirmative  defense  and  the 
burden  is  on  the  plaintiff  to  show  he  was  not  negligent.^*    "Wh.ere 


"Great  Western  R.  R.  Co.  v. 
Bacon,  30  111.  347 ;  Vail  v.  McKernan, 
21  Ind.  421;  Pack  v.  Chapman,  16 
La.  An.  397;  The  Short  Staple,  1 
Gall.  (U.  S.)  104;  The  Argo,  1  id. 
150. 

«Pack  V.  Chapman,  16  La.  An.  366. 

"Hale  V.  Haselton,  21  Wis.  820. 

"Tavlor  v.  Spears,  6  Ark.  381. 

"Melone  v.  Ruffino,  129  Cal.  514, 
62  P.  93,  79  Am.  St.  Rep.  127;  Perot 
V.  Cooper,  17  Col.  80,  28  P.  391,  31 
Am.  St.  Rep.  258:  United  States 
Wringer  Co.  v.  Cooney,  214  111.  520, 
73  N.  E.  803. 

"Liberty  Wall  Paper  Co.  v.  Stover 
Wall  Paper  Mfg.  Co.,  178  N.  Y.  219, 
70  N.  E.  R.  501. 

'"Western  Coal  and  Mining  Co.  v. 
Hollenbeck      (Ark.),    80    S.    W.    145. 

"Truax  v.  Heartt,  135  Mich.  150, 
97  N.  W.  394. 

« J.  B.  Pvron  &  Son  v.  Ruohs,  120 
Ga.  1060,  48  S.  E.  434. 

'^Slater  v.  Skirving,  51  Neb.  108, 
70  N.  W.  493,  66  Am.  St.  Rep.  444. 

"  Mitchiver  v.  Western  Union  Tele- 
graph Co.  (S.  C,  1905),  50  S.  E.  190. 
Contra,  in  an  action  for  negligence 
where  the  plaintiff  has  made  out  a 
prima  facie  case  of  negligence  on  the 
part  of  the  defendant  the  burden  then 
rests  on  the  defendant  to  show  con- 
tributory negligence  in  the  plaintiff. 
Plannegan  v.  Chesapeake,  etc.,  R.  Co., 
40  W.  Va.  436,  21  S.  E.  1028,  52  Am. 

39 


St.  Rep.  896.  In  an  action  for  neg- 
ligence, where  the  plaintiff  has  dis- 
closed facts  conclusively  showing  con- 
tributory negligence  on  his  part,  he 
has  made  no  case,  and  the  defendant 
is  entitled  to  a  peremptory  instruc- 
tion at  the  close  of  the  .plaintiff's 
case.  If,  however,  the  facts  disclosed 
by  the  plaintiff,  while  tending  to 
show  contributory  negligence,  are  not 
so  clear  that  different  minds  cannot 
well  differ  upon  the  proposition,  then 
the  defendant  must  produce  his  evi- 
dence. If  he  has  pleaded  contribu- 
tory negligence  as  a  defense,  the  bur- 
den is  upon  him  to  establish  it.  To 
controvert  the  evidence  produced  by 
the  defendant,  together  with  the  facta 
tending  to  show  contributory  negli- 
gence which  were  shown  by  the  plain- 
tiff himself,  the  plaintiff  must  fur- 
nish sufficient  evidence  to  overcome 
the  weight  of  the  defendant's  evi- 
dence as  well  as  that  which  was  dis- 
closed by  him  tending  to  show  such 
negligence  on  his  part.  In  doing  this, 
however,  the  burden  of  proof  does  noc 
shift.  The  only  duty  imposed  upon 
the  plaintiff  in  such  case  is  to  over- 
come the  weight  of  evidence,  which  is 
then  against  him  upon  this  point.  It 
is  immaterial  whether  the  evidence 
was  furnished  partly  by  himself  or 
all  by  the  defendant;  it  is  a  part  of 
the  affirmative  defense  pleaded  by  de- 
fendant, and  which  the  plaintiff  must 


610  EviDExcE.  [Cliap.  IS 

tlie  statute  of  limitations  is  pleaded  as  a  defense  the  burden  is 
upon  tlie  plaintiff  to  sliow  that  the  action  -was  commenced  within 
the  period  limited  by  the  statute."''  Where  a  party  in  possession  of 
land  shows  adverse  possession  for  a  period  long  enough  to  give 
him  title  as  against  the  party  holding  the  paper  title  the  burden  is 
upon  the  holder  of  the  paper  title  tc  show  himself  under  a  disabil- 
ity during  the  period  of  adverse  possession.^^  Where  it  appears  that 
an  .agreement  has  been  reduced  to  writing  the  party  relying  on  it 
is  bound  to  produce  it  or  account  for  its  absence,  and  the  opposite 
party  is  under  no  obligation  to  call  for  it.^^* 

It  may  be  said  that  in  all  cases  the  onus  prohandl  rests  upon 
the  party  who  is  obliged  to  free  himself  from  liability  by  proving 
a  fact,  when  the  knowledge  of  that  fact  is  supposed  to  be  more 
within  his  reach  than  that  of  his  adversary,^'  W^ere  a  party  is 
seeking  a  recovery  upon  the  gi-ound  that  the  defendant  did  not  dis- 
charge a  statutory  duty,  the  burden  is  upon  him  to  show  tliat  such 
duty  was  not  discharged.  Thus,  where  a  statute  provides  that  a 
railway  company  is  required  to  ring  the  bell  or  blow  the  whistle 
of  the  locomotive  within  a  certain  distance  of  a  highway  crossing, 
a  party  seeking  a  recovery  for  an  injury  at  a  crossing  upon  the 
ground  that  this  duty  was  not  discharged,  must  show  that  neither 
the  whistle  was  blown  nor  the  bell  rung  as  required  by  the  statute ; 
and  if  it  is  only  shown  that  the  whistle  was  not  blown,  no  recov- 
ery can  be  had,  because  the  company  had  its  election  to  blow 
the  whistle  or  ring  the  bell,  and  in  the  absence  of  proof  to  the  con- 
trary, if  it  is  only  shown  that  the  whistle  was  not  blown,  it  will  be 
presumed  that  the  bell  Avas  rung.^^ 

As  a  restriction  on  marriage  is  exceptional  the  burden  is  upon 
the  party  claiming  it  to  show  it,^^  and  the  burden  is  on  one  con- 
tracting with  an  infant  to  show  that  the  contract  was  fair  and 
beneficial  for  the  infant.^*^    "Where,  in  ejectment,  the  land  in  dis- 

funiish   sufficient  evidence  to  balance  ^*  Catheart  v.  Hannibal,  etc.,  R.    R. 

or  overcome.     Rupp  v.  ISarpv  County  Co.    (Mo.    S.    C.    1885),    11    Western 

(Neb..  1905),  102   IST.  W.   242,  98  X.  Rep.  401. 

W.  1042.  ^*  State   v.    Shattuck,    69    Vermont, 

="  Houston  V.   Thornton,    122   N.    C.  403,  38  A.  81.  60   Am.  St.  Rep.  936, 

305,  29   S.   E.    827,  65  Am.   St.   Rep.  where     it     was     claimed     that     one 

699.  against    whom    a    divorce    had    been 

'"Arnold       \.       Limeburger      (Ga.,  granted  in  another  State  was  thereby 

1905),   49   S.  E.   812.                  .  under  a  disability  to  marry  again. 

'"aMahoney  v.  Carr,  175  N.  Y.  454,  '"Johnson  v.  Xorthwestern  Mut.  L. 

67   N.  E.  R.  903.  I-  Co.,  56  Minn.  365,  57   N.  W.   934. 

'■  Forde   v.    Simmons,    13    La.    An.  59  N.  W.  992,  45  Am.  St.  Rep.  473. 
397. 


Sec.  182.] 


BuKDEN  OF  Proof.  ^^1 


pute  is  within  the  boundaries  of  a  deed  and  the  defendant  claims 
under  exceptions^  in  such  deed  the  burden  is,  upon  the  defendant 
to  prove  himself  within  the  exceptions.^^  Where  an  undisclosed 
principal  brings  suit  on  a  contract  made  by  his  agent  the  burden 
of  proof  lies  on  the  principal  to  show  the  agency  and  that  m  the 
making  of  the  contract  the  agent  was  acting  for  him.''  Where  one 
is  sued  for  conversion  and  admits  the  taking,  but  claims  it  was  by 
his  agent  and  under  the  license  of  a  statute,  the  burden  is  on  the 
defendant  as  a  matter  of  order  of  proof,  to  go  forward  and  prove 
the  license.  There  is  no  presumption,  as  in  case  of  government 
officials,  that  the  agent,  having  authority  to  act,  acted  within  the 
scope  of  his  authority.^' 

In  assumpsit,  account  or  actions  of  book  account  to  recover  a 
balance  due  upon  accounts,  the  burden  rests  upon  the  plaintiff  to 
establish  the  accuracy  of  his  accounts,  and  the  fact  that  the  articles 
charged  were  delivered  to  tha  defendant.     In  some  of  the  States,, 
the  books  of  account  are  held  to  be  prima  facie  evidence  of  the 
sale,  delivery,  etc.,  but  in  others,  if  the  person  making  the  oharge 
is  still  living,  he  must  be  produced  as  a  witness,  or  the  fact  of  de- 
livery established  by  other  evidence.'*     In  the  case  of  merchants' 
accounts,  if  a  statement  has  been  sent  to  the  defendant,  and  he  did 
not  object  thereto  within  a  reasonable  time,  it  is  presumed  to  be 
correct,'^  and  such  also  is  held  to  be  the  rule  as  to  accounts  current, 
or  accounts  in  tlie  ordinary  course  of  business.'^    If  accounts  have 
been  settled  and  a  balance  agreed  upon,  if  a  mistake  is  claimed  to 
have  been  made,  the  burden  of  proof  is  on  the  party  seeking  to  open 
the  account  f  but  when  a  party  claims  that  accounts  have  been 
liquidated,  the  burden  is  upon  him  to  establish  it.  Thus  where  to  a 
plea  of  the  Statute  of  Limitations  the  plaintiff  replied  that^  the 
accounts  were  merchants'   accounts,   and  the  defendant  rejoined 
that  the  accounts  were  not  open  and  current,  but  were  liquidated 
more  than  six  years  before  the  action  was  brought,  the  plaintiff 

"Bernhardt   v.    Brown,    122   N.    ('.       Cranch    (U.  S.  C.  C  )     250;   Hopldrlc 
587,  29   S.   E.   884,   65   Am.   St.   Rep.       v.  Page,  2  Brook.    (U.  b.  L.  L.)    ZU; 


725 


Barry  v.  Barry,   3  Cranch    (U.   S.  C. 

=>-' Powell  V.  Wade,   109  Ala.  95.  19  C.),'l20;      Wiggins  v.   Burkham.   10 

So.  500,  55  Am.  St.  Rep.  915.  Wall.    (U.   S.)    129. 

"United  States  v.  Denver  &  R.  G.  =°  Webbe  v.   Chambers,   3  Ired.    (N. 

R    R     191  U.  S.  84,  24  S.  Ct.  33.  Co.)    L.   374;      Sheppard  v.   Bank  ol 

34'ggg  f^^te,   §    128.  Missouri,    15   Mo.    143;      Freeland    v. 

«  Bainbridge  v.  Wilcocks,  Bald.  (U.  Heron,  7   Cranch.   147. 

S.    C.    C.)536;      White   v.    Mason,    3  =' Mills  v.  Johnston,  23  Tex.  308. 


612  Evidence.  [Chap.  18 

traversed  this  plea.  It  was  held  that  the  burden  of  proof  was  upon 
the  defendant  to  s'how  that  the  accounts  were  liquidated  and 
closed.^^ 

If  a  party  seeks  to  recover  of  another  upon  a  contract  made  by 
another  in  his  name  as  agent,  the  burden  is  upon  him  to  establish 
the  agency.  Thus  where  a  person  sold  goods  to  another  whom  he 
alleged  to  be  the  agent  of  a  quartermaster,  and  the  allegation  was 
traversed,  it  wag  held  that  the  burden  was  upon  the  plaintiff  not 
only  to  establish  the  agency,  but  also  the  appointment  of  the  quar- 
termaster.^^ The  fact  of  agency  may  be  established  by  proof  that 
a  certain  person  acted  as  such  for  the  defendant  with  the  defend- 
ant's knowledge,  or  under  such  circumstances  that  he  may  be  pre- 
sumed to  have  known  of  it.^*'  But  where  the  defense  to  an  action 
is  that  the  contract  was  made  by  the  defendant  as  agent,  the  bur- 
den is  upon  him  not  only  to  establish  that  fact,  but  also  that  he 
was,  in  fact,  agent  for  the  j>erson  against  whom  he  claims  tlie  lia- 
bility exists,  and  that  he  had  full  authority  to  make  the  contract 
for  him.*^ 

Where  an  altered  instrument  is  offered  in  evidence  the  burden 
is  always  upon  the  proponent  to  prove  its  execution  as  claimed.*^ 

**  M'Lellan  v.  Crofton,  6  INIe.  308.  ponderance   of   evidence    that   the   al- 

"  Calkins  v.  United  States,  1  Ct.  of  terations  were  made  under   such   cir- 

Cl.  382.     See,  also,  Beals  v.  Merriam,  eumstances  as  not  to  affect  his  right 

11  Met.   (Mass.)   470.  to     recover.       Consumers'    lee   Co.   v. 

"State  V.  Foster.  23  N.  H.  348.  Jennings,  100  Va.   719,  42  S.  E.  879. 

"  Oawter    v.    Baker,    23    Ind.    63 ;  Where    an    instrument    is     produced 

Wheeler  v.  Eeed,  36  111.  81.  vrith    the    signature    crossed    out    the 

*^  The  addition  in  manuscript  of  n  burden     is    upon    the    party    relying 

single  letter  to  a  typewritten  instru-  upon    it   to   show   that   the   signature 

ment  does  not  preclude  its  being  read  is  still  upon  it  or  was  upon  it  when 

in  evidence.     \\Tien   the  execution   of  delivered  and  has  not  since  been  can- 

the  instrument  is  proved   the  burden  celled  with  the  consent  of  the  party 

does   not   change,   but   the    defendant  claiming  under   it.     Baxter  v.  Camp, 

meets  the  evidence  of  the  plaintiff  by  71  Conn.  245,  41  A.   803,  71  Am.  St. 

proof    that   the    contract   in   evidence  Rep.    169.        Where  a   note   has  been 

is  not  that  put  in  suit  and  the  bur-  altered     the     question,    whether     Hie 

den  remains  on  the  plaintiff  to  prove  alteration  was  before  or   after  deliv- 

the    contract    on    which    he    lias    dc-  ery    is    a    matter    of    proof    like    any 

Glared.       Graham    v.    Middleby,    185  other   fact    and    the    burden    is   upon 

Mass.  349,  70  N.  E.  R.  416.     Where  him    who    claims   that   the   note   was 

a  contract  contains  an  interlineation  altered  before  deliverv.       Wolferman 

it  will  ij«ually  be  admitted  on  testi-  v.   Bell,  6   Wash.   84,  32   P.   1017,   30 

mony    that    the     interlineation    was  Am.  St.  Rep.   120.     An  alteration   in 

made  before  execution,  but  when  the  a    note,    mortgage    or    other    written 

fact    is    controverted    the    burden    is  contract   or   evidence   of   indebtedness 

still   upon    the    party   having   posse.3-  must    be    explained    by    the    person 

sion  of  the  instrument  and  claiming  benefited    by    the    alteration,    as    the 

under  it  to  satisfy  the  jury  by  a  pre-  law  presumes,  in  the  absence  of  proof 


Sec.  182.] 


Burden  of  Pkoof. 


613 


However,  where  an  interlineation  in  a  deed  is  in  the  same  hand- 
writing as  the  body  of  the  deed,  and  accords  with  the  purpose  and 
object  of  the  deed  the  fair  presumption  is  that  it  was  made  be- 
fore the  acknowledgment  of  execution,^^  but  not  where  the  altera- 
tion is'  suspicious  on  its  face.  However  where  the  boundaries  of 
a  tract  conveyed  are  altered  to  include  additional  land  and  the 
clause  specifying  the  number  of  acres  conveyed  is  not  changed  to 
correspond,  the  alteration  must  in  the  absence  of  explanatory  proof 
be  held  to  be  made  after  the  deed  was  executed  and  to  be  ineffect- 
ive as  lacking  the  proper  attestation,  even  though  made  by  the 
grantor.**  Where  a  substantial  compliance  with  the  provisions 
of  the  statute  as  to  preservation  of  ballots  has  been  shown,  the 
burden  of  proof  shifts  of  establishing  that  they  have  in  fact  been 
tampered  with.*^ 


to  the  contrary,  that  the  original 
contract  without  alteration  expresses 
the  real  intention  of  the  parties. 
Van  Horn  v.  Bell,  11  Iowa,  465;  Hill 
V.  Cooley,  46  Penn.  St.  256;  Smith  v. 
United  States,  2  Wall.   (U.  S.)   219. 

"Lewis  V.  Watson,  98  Ala.  479,  13 
So.  570,  39  Am.  St.  Rep.  82.  In 
Louisiana  the  burden  of  proof  is  on 
him  who  would  show  that  an  erasure 
in  a  material  part  of  a  deed  was 
made  before  signing.  Wheadon  v. 
Turregano,  112  La.  — ,  36,  So.  808. 

"Burgess  v.  Blake,  128  Ala.  105, 
28  So.  963.  Where  there  is  a  con- 
flict between  a  probate  deqd  as 
altered  and  the  description  of  the 
land  as  given  in  the  probate  proceed- 
ings which  are  the  foundation  of  the 
deed,  the  "deed  should  be  excluded. 
Collins  V.  Ball,  82  Tex.  259,  17  S.  W. 
614,  27  Am.  St.  Rep.  877. 

^'Tobbe  V.  Smith,  108  Cal.  101,  49 
Am.  St.  Rep.  68,  41  P.  454. 

Where  an  original  entry  of  an  ae- 
coimt  was  altered,  it  was  held  that 
the  alteration  must  be  explained  or 
it  would  be  presumed  to  be  in  accord- 
ance with  the  facts  at  the  time  of 
entry.  Shiels  v.  West,  17  Cal.  324; 
but  if  the  alteration  is  not  apparent, 
the  person  claiming  the  benefit  of  it 
must  prove  it  fully,  Davis  v.  Jenny, 
1  Met.  (Mass.)  221;  so  where  a  mort- 
gage was  altered,  it  was  held  in  the 
absence  of  proof  to  the  contrary  that 
the  burden  was  on  the  mortgagee  to 


explain  the  alteration,  and  that  in 
the  absence  of  proof  to  show  that  the 
alteration  was  in  accordance  with  the 
contract,  it  would  be  presumed  that 
the  contract  was  as  it  existed  before 
the  alteration  was  made,  Van  Horn 
V.  Bell,  11  Iowa,  405;  and  as  co 
whether  a  material  alteration  requir- 
ing explanation  has  really  been  made 
since  the  delivery  of  the  contract,  the 
court  may  determine.  Wood  v.  Steel, 
6  Wall.  (U.  S.)  80;  Ives  v.  Farmers' 
Bank,  2  Allen  (Mass.),  236.  Where 
an  official  document,  which  has  al- 
ways remained  in  the  custody  of  the 
officer  entitled  to  its  charge,  is 
altered,  it  will  be  presumed,  until  the 
contrary  appears,  that  the  alteration 
was  rightly  made.  Devoy  v  New 
York,  35  Barb.  (N.  Y.)  264.  Where, 
previous  to  the  inspection  by  the  jury 
of  a  locality  where. a  crime  has  been 
committed,  a  change  has  been  made, 
it  is  incumbent  upon  the  prosecution 
to  show  that  the  change  does  not  in- 
juriously aflfect  the  respondent.  State 
v.  Knapp,  45  N.  H.  148.  When  a 
party  who  has  formerly  resided  for  a 
long  time  in  one  locality  goes  to  re- 
side in  another  for  such  a  time  as 
raises  a  reasonable  presumption  of 
actual  residence,  the  burden  is  upon 
him  to  show  that  his  domicile  is  still 
at  the  place  in  which  he  has  formerly 
resided.  Atler  v.  Waddell,  20  La. 
Ann.  246.  See  Hart  v.  Horn,  4  Kan. 
232,  where  it  is  held  that  fact  and 


614:  Evidence.  [Chap.  18 

"Wliere  a  lien  has  once  attached  in  favor  of  a  vendor,  it  is  incum- 
bent ujjon  a  purchaser  who  claims  that  the  lien  has  been  quieted  or 
lost  to  maintain  the  fact^®  '\,\^ien  a  person  seeks  to  recover  of  a 
carrier  for  injuries  received  bv  his  or  its  neglect,  the  law  presumes 
that  he  was  a  passenger  for  hire,  and  the  burden  of  establishing 
the  contrary  is  on  the  carrier  f'  so  in  an  action  against  a  carrier  of 
goods  it  is  not  incumbent  on  the  plaintiff  to  show  negligence  on  the 
part  of  the  earner,  but  the  burden  is  on  the  carrier  to  show  that  the 
goods  were  not  delivered  bj  reason  of  the  intervention  of  a  legal 
excuse.'*^  The  rule  is  that  it  is  only  incumbent  ux^on  the  plaintiff 
to  show  a  delivery  of  the  goods  to  the  carrier  and  their  loss^  or  if 
the  claim  is  for  damages  done  to  them,  the  fact  that  they  are  dam- 
aged and  the  amount  of  the  injury,  and  the  onus  is  then  imposed 
upon  the  carrier  of  showing  that  the  loss  or  damage  resulted  from 
some  of  the  perils  from  which  they  are  exempted  under  their  con- 
tract of  shipment  ;*^  but  in  actions  against  common  carriers  of  pas- 
sengers, the  mere  fact  that  a  passenger  was  injured  while  on  his 
journey  is  not  sufficient  to  throw  the  onus  of  proving  due  care  on 
the  carrier.  The  burden  is  on  the  party  injured  to  make  out  that 
degree  of  negligence  and  want  of  care  on  the  part  of  the  carrier 
essential  to  charge  him  with  liability,  and  he  cannot  rest  his  case 
until  such  proof  is  made ;  as,  failing  in  that,  the  carrier  is  entitled 
to  a  verdict  without  the  introduction  of  any  proof  whatever.^" 

Sec.  183.  Fraud. 

In  all  cases  where  fraud  is  charged  as  substantive  matter, 
whether  in  a  declaration  or  plea,  the  party  alleging  it  must  make 
it  out  by  a  clear  preponderance  of  evidence.^  Thus  where  fraud  is 
charged  in  the  administration  of  a  trust,  the  party  relying  upon  it 
takes  the  burden  of  establisbir.g  the  fraud,  and  the  evidence  must 

intent  must  concur  to  work  a  change  E.   Co.  v.   Cowles,  32  111.    116;  Huni- 

of  domicile.     See.  also,  Clarke  v.  Ter-  plireys  v.  Switzer,   11  La.  Ann.  320; 

ritory.  1  Wash.  Ter.  82.  Tarbox  v.  Eastern   Steamboat  Co..  50 

*'Hays  V.  Horine,   12   Iowa,   61.  Me.  339. 

*■  Buffit  V.  Troy,  etc.,  R.  R.  Co.,  36  =»  Mitchell    v.    Western,    etc.,    Rail- 
Barb.   (N.  Y.)   420.  road  Co.,  30  Ga.  22.   • 

"Tarbox     v.     Eastern     Steamboat  '  Beatty  v.  Fischel,  100  Mass.  448; 

Co..  .')0  Me.  339.  Kline  v."^Horinp.   47   III    430;   Hager 

"Hinkle  v.   Southern  Ry.   Co..   126  v.    Thomson,    1    Black    (U.    S.),    80 

N.  C.  932,  36  S.  E.   348,  78  Am.  St.  Oaks     v.     Harrison.    24     Iowa,     179 

Rep.  085;   Shaw  v.  Gardner,  12  Gray  Winslow     v.     Gilbert.     50     Me.    90 

(Mass.),   488;      Steamer   Niagara    7.  Blaisdell   v.    Cowell,    15   Me.   370. 
Cordes,  21  How.   (U.  S.)    70;   111.  R. 


Sec.  183.] 


BUEDEN   OF  PeOOF.  ^15 


be  such  as  to  overcome  tlie  presumption  of  a  correct  administra- 
tion of  the  trust  wliicli  the  law  raises  in  favor  of  ths  trustee/  and 
in  an -action  to  have  the  probate  of  a  will  set  aside  the  burden  is 
upon  the  plaintiff  to  prove  undue  influence  on  the  testator/  so, 
too,  where  fraud  is  charged  in  a  contract,  all  the  elements  neces- 
sary to  establish  the  fraud  must  be  made  out  by  the  party  alleging 
it  /  as  where  false  representations  in  tlis  sale  of  property  are  relied 
on,  it  must  not  only  be  proved  that  the  representations  were  false, 
but  that  they  were  made  with  a  fraudulent  intent  and  in  respect 
to  a  material  matter/  mere  expressions  of  opinion  by  the  vendor 
of  property,  real  or  personal,  whether  relating  to  its  quality  or 
quantity,  even  though  such  representations  are  erroneous  and  un- 
tTue,  are  not  sufficient  in  the  absence  of  improper  motive  to  estab- 
lish fraud  either  in  support  of  an  action  at  law  or  for  relief  in 
equity.    The  representations,  in  order  to  be  actionable  or  relievable 
in  equity,  must  have  been  in  reference  to  a  substantive  matter, 
must  have  been  relied  on  by  the  purchaser  and  made  under  such 
circumstances  as  to  show  a  fraudulent  pur^DOse  on  the  part  of  the 
vendor,  and  the  burden  of  establishing  all  these  facts  is  upon  him 
who  would  avail  himself  of  thsm  /  as  that  the  facts  claimed  to  be 
false  were  peculiarly  within  the  vendor's  knowledge  /  or  that  he 
made  the  representations  as  matter  of  'knowledge  and  not  of  belief, 
the  fraud  consisting  in  setting  up  his  mere  belief  as  knowledge  / 
so  in  an  action  where  the  material  question  is,  whether  a  party 
selling  property  with  certain  defects  under  such  circumstances  that 
fraud  is  predicted  of  the  act,  it  is  incumbent  on  the  party  alleging 
the  fraud  to  prove  that  the  other  did  not  disclose  the  defects  /  and 
indeed  in  all  cases. where  the  presumptions  are  witji  the  defendant, 
the  burden  is  on  the  plaintiff  to  fully  overcome  them.     Thus,  in 
all  cases  where  fraud  is  alleged  and  relied  on,  the  onus  is  on  the 
plaintiff  to  prove  it  fully  and  by  strict  proof,  even  though  it  in- 

*Bibb  V.  Pope,   43  Ala.   190.  39   How.  Pr.    (N.  Y.)    172;   Hagee  v. 

•Parkpi-  V.  Lambertz   (Iowa,  1905),  Grossman.  31  Ind.  223. 

104  N    W    452  '  Sinerking  v.   Litzler,   31    Ind.    13; 

*  Smith  'v.  Webb.  64  N.  C.  541.  Paddock    v.    rietcher,    42    Vt.    389; 

"Taylor   v     ticoville,   54   Barb.    (N.  Morgan    v.    Skidmore,    55    Barb.    (N. 

Y)    34  Y.)    263;      Bradbury    v.     Bordin,    35 

'» Moore    v.    Barre,    11    Iowa,    198;  Conn.   577;   Fackler   v.    Ford,   McMa- 

Drake  v.  Latham,  50  111.  270;   Curry  hon    (Kan.),  21.                       ,.^^      ,„, 

V    Kevser,    30    Ind.    214;      Putney    v.  *  Cabot    v.    Christie,    42    Vt.     12.; 

Handy,  99  Mass.  5 ;   Wheeler  v.  Ran-  Paddock   v.  Fletcher,  id.  389. 

dall,  48   111.    182;  Marshall   v.   Gray,  "Flemming    y.    Slocum,    18    Johns. 

(N.  Y.)    403. 


CIG 


EviDEiSfCE. 


[Obap.  18 


volves  negative  proof  because  fraud  is  never  presumed,  but  ratber 
tbe  opposite/"  But  wbere  facts  are  proved  pointing  toward  fraud 
or  undue  influence  tbe  burden  tben  sbifts  and  rests  upon  tbe  par- 
ties cbarged  witb  tbe  fraud  to  explain  tbes©  circumstances  and 
wben  tbey  fail  to  furnisb  evidence  clearly  witliin  tbeir  power  all 
tbe  presumptions!  of  law  are  against  tbem/^ 


Sec.  184.  Burden  as  to  Negative  Propositions. 

Tbe  party  bolding  tbe  affirmative  of  tbe  issue,  as  a  general  rule, 
takes  tbe  onus  of  proof,  but  tbere  are  numerous  exceptions  to  tbis 
rule,  and  it  may  be  stated  as  a  general  proposition  that  m  all  in- 


'"Xonis'  Peake  on  Ev.,  p.  7. 

So  where  an  action  is  brought  for 
official  misconduct  or  neglect,  the 
P'Bsumption  being  that  all  officers 
discharge  their  duty,  it  is  incumbent 
on  the  plaintiff  to  overcome  this  pre- 
sumption by  full  proof  and  to  take 
the  burden  of  proof,  whether  the  issue 
is  affirmative  or  negative;  as  when? 
a  sheriff  is  charged  with  neglect  in 
the  service  of  process,  Buler  v.  Bul- 
litt, 3  Marsh.  (Ky.)  280,  or  in  the 
levy  of  an  execution,  it  is  always  in- 
''umbent  on  the  plaintiff  to  establish 
the  neglect  by  showing  that  the  of- 
ficer did  not  discharge  his  duty,  Da- 
vis v.  Johnson,  3  Munf.  (Va.)  81; 
and  so  in  a  multitude  of  instances  too 
numerous  for  special  mention  here, 
and.  indeed,  in  all  instances  where 
the  right  of  action  or  the  validity  of 
the  defense  depends  upon  provin-^ 
tliat  a  certain  act  was  not  done, 
the  party  alleging  it,  whether 
plaintiff  or  defendant,  takes  the 
onus  of  proof.  As  illustrative 
of  this,  where  a  levy  of  an  ex- 
ecution is  sought  to  be  avoided  upon 
the  ground  that  the  sheriff  has  failed 
to  give  the  notice  required  by  law, 
the  law  raising  a  presumption  in 
favor  of  the  sheriff  that  be  has  per- 
formed his  duty  in  a  legal  manner, 
tlie  burden  is  upon  the  party  attack- 
ing tlie  levy,  not  only  to  overcome 
this  presumption  by  strict  proof,  but 
to  overcome  by  a  fair  preponderance 
of  evidence  all  proof  interposed  tend- 
ing to  establish  the  presumption  and 
to  show  that  the  notice  was  not  given, 
Hartwell  v.  Root,  19  Johns.    (N.  Y.) 


345;      Topper   v.    Taylor,    6    S.   &   R. 

(Penn.)  173;  so  in  settlement  cases 
where  a  pauper  is  sought  to  be 
charged  upon  another  town  or  county, 
it  is  always  incumbent  upon  the  town 
or  county  seeking  to  charge  the  other 
with  the  pauper's  support  to  show 
that  the  pauper  has  no  settlement  in 
it,  Wilmington  v.  Burlington,  4  Pick. 

(Mass.)  174.;  so  in  actions  for  ma- 
licious prosecutions,  want  of  proba- 
ble cause  must  be  fully  made  out  by 
the  plaintili.  Lane  v.  Crombie,  12 
Pick.  (Mass.)  177;  Purcell  v.  Ma- 
Namara,  9  East,  361;  so  in  criminal 
proceedings,  wliile  the  burden  is  upon 
the  State  of  establishing  not  only  af- 
firmative, but  also  negative  matter, 
such  as  the  absence  of  provocation  or 
that  the  act  was  not  done  in  self-de- 
fense, in  trials  for  murder;  yet,  as  to 
all  matters  not  connected  with  the 
body  of  the  offense  charged,  and 
which  are  in  defense  purely,  the  bur- 
den is  on  the  respondent.  In  a  Ver- 
mont case.  State  v.  Patterson,  45  Vt. 
308,  the  court  very  ably  discussed  the 
rule  applicable  to  trials  for  murder 
as  to  the  burden  of  proof  in  case:* 
where  there  were  any  really  exculpa- 
tory circumstances,  and  held  that  in 
all  such  cases  the  burden  is  upon  the 
State  to  make  out  all  the  elements 
necessary  to  establish  the  principal 
offense,  even  to  the  extent  of  over- 
coming the  force  of  such  exculpatory- 
circumstances.  State  V.  Lipscomb,  52 
Mo.  32;  State  v.  Murphy,  33  Iowa, 
270. 

'^  Nunez    v.    Bayhi,    52    La.    Ann. 
1719,  28  So.  349. 


-Sec.  1S4.]  Burden  of  Peoof.  617 

stances  ivJicre  the  riglit  of  action  depends  upon  a  negative  aver- 
ment, the  party  making  it  is  charged  with  the  burden  of  proving  it. 
This  is  in  obedience  to  the  rule  that  the  burden  of  proof  is  upon 
him  who  raises  an  issue  which  would  be  defeated  if  no  proof  was 
offered/  The  rule  operates  no  hardship,  for  the  reason  that  a  party 
whose  right  of  action  depends  upon  proof  that  a  person  has  not 
done  an  act  which  he  was  legally  bound  to  do,  and  the  neglect  to  do 
which  creates  a  legal  liability  in  his  favor,  is  presumed  to  ba  pre- 
pared with  proof  that  the  act  has  not  been  done,  and  without 
such  proof  the  bringing  of  an  action  is  wholly  unwarranted.  There 
are  a  multitude  of  instances,  however,  where  only  slight  proof  of 
the  affirmative  of  the  issue  is  neces-sary  to  throw  the  burden  of  prov- 
ing the  negative  upon  the  defendant.  These  are  instances  where 
the  law  presumes  the  affirmative  of  the  issue.  Thus,  in  an  action 
on  a  promissory  note,  the  mere  production  of  the  note,  where  its 
execution  is  not  denied,  is  sufficient  to  establish  the  plaintiff's  right 
of  action,  the  law  presuming  non-payment  from  the  fact  of  pos'ses- 
sion ;  and  if  the  defendant  sets  up  payment,  the  burden  is  upon 
him,  and  this  is  the  case  in  all  actions  upon  written  evidence" of 
indebtedness  where  the  amount  is  liquidated.  But  in  actions  upon 
book  debt,  the  rule  is  different.  In  such  cas-es,  unless  a  settlement 
has  been  had,  and  the  amount  due  liquidated  under  the  hands  of 
the  parties,  the  plaintiff  is  not  only  compelled  to  prove  his  account, 
but,  also,  that  it  has  not  been  paid ;  so  in  an  action  upon  a  bond, 
the  mere  production  of  the  bond  is  not  sufficient;  the  plaintiff  is 
also  bound  to  prove  that  the  defendant  has  not  complied  with  its 
provisions,  and  if  there  are  any  precedent  acts  to  be  performed  by 
him,  that  he  has  on  his  part  fully  performed,  before  the  burden  is 
shifted  to  the  defendant.  There  are  exceptions  to  the  general  rulel 
that  he  who  takes  the  affirmative  of  an  issue  takes  the  burden  of 
proof,  as  where  the  declaration  or  plea  sets  up  negative  matter, 
essential  to  the  issue,  which  is  peculiarly  within  the  knowledge  of 
the  other  party.  In  such  cases  the  allegations  are  taken  as  true 
unless  denied  by  the  other  party.^  One  objecting  to  the  certificate 
of  an  administrative  officer  for  want  of  an  official  seal  has  the  bur- 
den of  proving  that  the  officer  had  a  seal.^     Thus,  in  actions  for  a 

'Kent  V.  White.  27  Ind.  300.  Y.     Superior      Ct.      499:       Ryan      v. 

estate    V.    Crowell,     15    Me.     171;  Valandingham,  25  111.   128. 
Haskill   V.   Com.,   3   B.    Monr.    fKy.)  'Anglo-American,  etc.,  Co.  v.  Dyer, 

342;      Schleisinger   v.   Ilexter,   34  'N.  181  Mass.  593,  64  N.  E.  R.  416. 


618 


EVIDEJ^CE. 


[Chap.  18 


penalty  for  selling  articles  witliout  a  license,  the  fact  that  the  party 
has  a  license  heing  peculiarly  within  the  knowledge  of  the  defend- 
ant and  susceptible  of  easy  proof  by  him,  the  burden  is  upon  him 
to  show  that  he  has  complied  with  the  law,  and  has  a  license  to 
sell.*  Indeed,  it  may  be  given  as  the  general  rule  that  in  all  cases 
where  the  nature  of  the  allegations  is  such  as  to  show  that  the  de- 
fendant is  ijeculiarly  possessed  of  the  knowledge  to  disprove  the 
issue,  the  law  presumes  the  tridh  of  the  negative  allegations-,  and 
the  burden  is  upon  the  defendant  to  disprove  them.  But  the  ride 
never  attaches  except  in  instances  where  the  law  pixsumcs  the  truth 
of  the  allegation  until  the  contrary  is  slioivn.^ 


*  Wheat  V.  State,  6  Mo.  455. 

■^Geiiig  V.  State,  1  McCord  (S.  C), 
573;  Com.  v.  Kimball^  7  Met.  (Mass.) 
304;  Sheldon  v.  Clark,  1  Johns.  (N. 
Y.)  513;  Smith  v.  Jeffries,  9  Price, 
257. 

In  an  indictment  for  keeping  a 
ferry  without  a  license,  it  was  held 
that  the  burden  is  upon  the  defend- 
ant to  show  that  he  had  a  license, 
and  that  the  prosecution  were  not 
obliged  to  introduce  any  evidence 
upon  that  point.  Wheat  v.  State,  G 
Mo.  455 ;  but  in  cases  where  the 
knowledge  is  equally  accessible  to 
both  parties,  so  that  it  cannot  be  said 
to  be  peculiarly  in  tlie  defendant,  the 
rule  is  otherwise.  Thus,  it  has  been 
held  that  where  licenses  granted  were 
a  matter  of  record  in  a  public  office, 
and  must  be  there  recorded  in  order 
to  have  validity,  the  State  is  bound 
to  show  that  no  license  was  granted 
to  the  defendant.  Where  a  person 
makes  a  will  while  under  guardiau- 
ship  as  non  compos  mentis,  the  bur- 
den is  upon  the  executor  to  show 
both  tliat  the  testator  had  such  men- 
tal capacity  and  freedom  of  will  and 
action  as  are  requisite  to  make  a 
legal  and  valid  will,  Breed  v.  Pratt, 
18  Pick.  (Mass.)  115;  but  where 
the  insanity  of  the  testator  is  set  up 
in  avoidance  of  the  will,  the  party 
alleging  it  must  prove  it,  as  the  law 
presumes  the  opposite.  Barton  v. 
Scott,  3  Rand.  (Va.)  399:  Phelps  v. 
Hartwell,  1  Mass.  71;  Hubbard  v. 
Hul)bard,  6  Mass.  397. 

In  an  action  for  a  breach  of  cove- 
no  nt  iu  rot  sup]dying  timber  accord- 
ing   to    the    terms    of    the    contract, 


where  the  defense  was  that  the  plain- 
tiff did  not  furnish  money,  it  was 
held  that  the  onus  probandi  was  upon 
the  defendant,  but  that  a  verdict 
ought  not  to  be  rendered  against  the 
defeudant  if  the  proof  was  such  that 
the  jury  had  reasonable  doubts  as  to 
the  facts,  Hollister  v.  Bender,  1  Hill 
(]Sr. 'Y.),  150;  so  in  an  action  by  an 
assignee  under  insolvent  or  bankrupt 
laws,  to  recover  the  value  of  property 
transferred  by  the  bankrupt  to  one  of 
his  creditors,  it  is  incumbent  on  the 
plaintiff  to  prove  that  the  defendant 
had  reasonable  grounds  to  believe 
that  the  bankrupt  was  insolvent 
when  the  transfer  was  made.  Butler 
V.  Breek,  7  Met.  (Mass.)  1G4.  Merely 
alleging  a  fact,  Avithout  producing 
airy  evidence  to  support  it,  can  in  no 
case  throw  the  burden  upon  another 
party  of  disproving  it,  Kyler  v. 
Calmes,  1  How.  (Miss.)  121;  as  an 
allegation  that  a  note  sued  upon  is 
without  consideration.  Kyler  v. 
Calmes,  ante. 

The  date  of  the  assignment  of  a 
note  is  jwima  facie  evidence  of  the 
time  when  it  was  assigned.  Byrd  v. 
Tucker,  3  Pike  (Ark.),  451.  Where 
a  party  has  once  acquired  a  domicile 
in  a  town,  and  is  there  taxed,  in  a 
suit  for  the  same,  the  burden  is  upon 
him  to  show  that  he  had  really 
abandoned  his  domicile  there,  before 
the  tax  is  assessed,  Kilburn  v.  Ben- 
nett, 3  Met.  (Mass.)  199;  so  in  an 
action  between  two  towns  for  the  sup- 
port of  a  married  woman  ^\  ho  is  a 
pauper,  the  burden  is  on  the  plaintiff 
town  to  show  that  she  has  a  settle- 
ment  in  the   defendant   town,   and   if 


Sec.  185.] 


Burden  of  Proof. 


619 


Sec.  185.  Presumption  of  Innocence,  etc. 

The  law  presumes  every  person  to  be  innocent  until  he  is 
proved  to  be  guilty  of  a  crime,  and  this  presumption  is  so  strong 
that  the  prosecution  must,  before  it  rests  its  case,  make  out  the  per- 
son's guilt  by  such  evidence  as  leaves  no  reasonable  doubt,  or  he 
will  be  entitled  to  an  acquittal  without  the  introduction  of  any 
rebutting  proof  ;^  and  where  the  evidence  is  circumstantial,  the 
rule  is  that  the  jury,  in  order  to  convict  the  prisoner,  must  find 
the  circumstances:  clearly  proved  as  facts,  and  when  they  are  so 
found,  thsy  must  be  of  such  force  and  character  as  clearly  and 
unequivocally  imply  the  prisoner's  guilt,  and  not  consistent  with 
any  reasonable  hypothesis  of  his  innocence.  If  they  can  be  reason- 
ably reconciled  with  any  hypothesis  of  his'  innocence,  he  is  entitled 
to  the  benefit  of  that  hypothesis,  and  it  would  be  error  for  a  jury 
to  convict.^     Indeed,  so  strong  is  this  presumption  of  innocence 


the  defendant  town  seeks  to  avoid  lia- 
bility upon  the  ground  that  her  hus- 
band had  a  settlement  in  some  other 
town,  the  burden  of  proving  this  is  on 
the  defendant,  the  rule  being  that  a 
person  seeking  to  avoid  liability  by  set- 
ting up  new  matter  takes  the  burden 
of  proof  as  to  such  matter,  Randolph 
V.  Easton,  23  Pick.  (Mass.)  242;  so 
where,  in  an  action  between  two 
towns  for  the  settlement  of  a  pauper, 
the  defendant  admits  that  the  pauper 
once  had  a  residence  in  it,  but  clainr^. 
that  he  has  since  gained  a  residencp 
in  the  plaintifl'  town,  the  burden  is 
on  the  defendant  to  establish  the  is- 
sue, Kilburn  v.  Bennett,  3  Met. 
(Mass.)  199;  so  in  a  case  where  tbe 
seizin  of  the  party  at  a  given  time  is 
admitted  or  proved,  the  legal  pre- 
sumption is  that  it  continues,  and 
one  who  sets  up  a  disseizin  takes  the 
burden  of  proof  of  overcoming  the 
presumption  and  establishing  a  dis- 
seizin by  full  proof.  Brown  v.  King, 
5  Met.   (Mass.)   173. 

Where,  in  an  action  of  ejectment, 
the  plaintitf  claims  to  recover  by  rea- 
son of  the  breach  of  a  condition  sub 
sequent,  he  is  bound  to  prove  the 
breach,  even  though  a  negative. 
O'Brien  v.  Doe,  G  Ala.  787.  Where 
either  party  claims  under  a  documerit 
signed  by  a  public  agent,  the  signa- 
ture must  be  proved,  whether  denied 
or  not.     Yo  nee-gus-kee  v.  Coleman,  3 


Hawks  (N.  C),  174.  So,  in  a  qui 
tarn  action  against  a  clerk  for  issu- 
ing a  license  to  marry  a  female  under 
age,  the  plaintiff  is  not  bound  to 
prove  that  consent  was  not  given;  the 
record  of  the  fact  being  prima  facie 
evidence  of  it,  and  in  tne  custody  of 
the  clerk,  he  is  bound  to  produce  it 
if  he  justifies  under  it,  Blaun  v.  Beal, 
5  Ala.  357 ;  so  in  a  qui  tarn  action 
against  a  minister  for  marrying  a 
minor  the  burden  of  proving  the 
parents'  consent  is  on  him.  Medlock 
V.  Brown,  4  Mo.  379.  In  a  trial  for 
a  criminal  ofl'ense,  tlie  prosecution  is 
bound  to  prove  actual  guilt  even  to 
the  extent  of  negativing  facts  that 
would  exclude  it.  Thus  in  a  New 
York  case,  People  v.  Bodine,  1  Denio 
(iSr.  Y.),  281,  it  was  held  that  proof 
by  tlie  State  that  a  murder  had  been 
committed,  and  tliat  tlie  house  in 
which  the  body  was  found  was  set  on 
fire,  under  circumstances  that  war- 
ranted a  suspicion  that  it  was  fired 
by  tlie  perpetrator,  was  not  enougli 
to  show  that  the  respondent  might 
have  been  at  the  scene  of  the  fire  to 
change  the  omis  of  proof  upon  the  re- 
spondent to  account  for  his  presence, 
but  that  it  must  show  that  he  was  in" 
fact  there. 

^  United     States     v.     Gooding,     12 
Wheat.    (U.  S.)    460. 

^  United     States     v.     Douglass,     2 
Blatchf.    (U.    S.)     207;     Ogletree    v. 


520  Evidence.  [Chap.  18 

and  lionestj  of  purpose  on  the  part  of  every  member  of  society,  it 
is  held  that  in  a  civil  action  where  the  facts  of  a  case  present  a 
double  aspect,  one  consistent  with  fair  dealing  and  the  other  in- 
volving dishonesty  of  purpose,  the  courts  will,  unless  the  weight 
of  evidence  is  decidedly  in  favor  of  the  hypothesis  of  dishonesty, 
strike  the  balance  in  favor  of  innocence  and  honesty  of  purpose.^ 
The  rule  does  not  go  to  the  extent  of  excluding  any  doubt  as  to  the 
prisoner's  guilt,  but  is  confined  to  reasonable  doubts; — such  doubts 
as  lead  a  juror  to  hesitate  about  convicting  the  prisoner,  as  do  not 
leave  the  mind  satisfied  that  a  verdict  of  guilty  should  be  ren- 
dered, and  such  as  would  lead  a  reasonable  man  to  hesitate  about 
acting  against  it  in  the  ordinary  relations  of  life.  It  is  not  a 
question  whether  the  jury  must  believe  in  his  guilt,  but  whether, 
while  the  mind  inclines  to  the  prisoner's  guilt,  there  is  yet  such  a 
doubt  remaining  in  his  mind  as  leads  him  to  hesitate  about  convict- 
ing him ;  whether  there  is  any  reasonable  hypothesis  in  view  of  all 
the  evidence  consistent  with  the  prisoner's  innocence.  If  so,  the 
prisoner  is  entitled  to  the  benefit  of  the  doubt,  as  the  prosecution 
has  failed  to  maintain  the  issue  raised  by  it  by  fiill  proof,  which 
requires  to  show  the  prisoner's  connection  with  the  crime  beyond 
a  reasonable  doubt. 

Sec.  1 86.  Burden  in  Case  of  Lost  Notes,  Etc. 

As  to  the  burden  of  proof  in  the  case  of  lost  notes  or  evidences 
of  indebtedness!,  the  rule  is,  that  where  the  instrument  is  admitted 
once  to  have  existed,  the  creditor  is  merely  bound  to  prove  its  loss, 
and  the  burden  is  upon  the  defendant  to  prove  payment  or  satis- 
faction of  the  claim.^ 

But  the  loss  must  be  clearly  proved,  otherwise  all  the  presump- 
tions as  to  its  contents  will  be  against  the  holder.^ 

In  the  case  of  an  instrument  mutilated  or  destroyed  by  a  per- 
son who  is  a  party  to  it,  everything  Avhich  can  be,  will  be  pre- 
sumed against  him  when  it  is  offered  in  evidence,  and  the  burden 

State,  28  Ala.  693;  State  v.  Newman,  loss  of  a  note  is  alleged  and  it  is  ad- 

7   id.  69;   Com.  v.  Kimball,   24  Pick.  mitted  by  the  defendant  that  such  a 

(Mass.)    366;   Com.  v.  Dana,   2   Met.  note   once   existed,   a   legal   considera- 

(Mass.)  329.  tion  is  presumed,  and  the  holder  will 

'Greenwood   v.    Lowe,    7    La.    Ann.  not  be  compelled  to   substantiate  the 

197.  original  transaction  or  show  its  non- 

*Bell  V.  Young,   1  Grant    (Penn.),  payment. 

175;  so  in  Mcllroy  v.  Cochran.  3  Litt.  ^Little  v.  Marsh,   2  Ired.    (N    C.) 

(Ky.)  454,  it  was  held  that  where  the  33L 


Sec.  187.]  Burden  of  Proof.  621 

will  be  upon  him  to  explain  the  mutilation  or  destruction,  and  the 
exact  legal  character  and  effect  of  the  instrument  originally.'' 

Sec.  187.  Who  is  to  Begin. 

It  frequently  becomes  an  important  question  whether  under  the 
pleadings,  the  plaintiff  or  the  defendant  shall  open  the  facts  and 
evidence  to  the  jury.  The  right  to  begin  often  confers  a  great 
advantage  upon  a  party,  and  is  a  right  which  is  generally  claimed, 
as  Avhere  evidence  is  anticipated  on  the  opposite  side  which  will 
give  a  right  to  reply  generally  on  the  whole  case ;  or  in  some-  in- 
stances it  may  be  a  disadvantage,  as  where  the  party  relies'  upon 
the  witnesses  of  his  opponent,  or  upon  the  difficulty  of  the  proofs 
incumbent  upon  him. 

As  a  rule,  the  right  to  begin  depends  upon  the  nature  of  the 
issue  and  the  rules  relating  to  the  burden  of  jDroof  at  the  opening 
of  the  trial,  but  the  real  test  is;  not  on  which  side  the  affirmative 
rests,  but  wliich  side  luill  he  entitled  to  a  verdict  if  no  evidence  is 
given,^  which  is  really  nothing  more  than  a  new  way  of  stating  the 
rule  that  the  party  upon  whom  the  burden  of  proof  lies  must  begin, 
beeause  until  this  question  is  settled  it  cannot  be  determined  who 
would  be  entitled  to  the  verdict  if  no  proof  was  given.  In  deter- 
mining this  question,  however,  regard  is  to  be  had  to  the  effect  and 
substance  of  the  issue,  rather  than  to  its  gi'ammatical  form.^  Thus, 
in  an  action  for  the  breach  of  a  contract  by  executing  it  in  an  un- 
workmanlike manner,  where  the  defendant  pleads  that  it  was  exe- 
cuted in  a  workmanlike  manner,  the  plaintiff  must  begin,  because 
if  no  evidence  was  given  the  verdict  must  be  against  him,  because 
the  law  wilLnot  assrume  that  the  work  was  bad.^  So  in  an  action  by 
an  indorser  against  an  acceptor,  if  the  defendant  pleads  that  the 
bill  Avas  for  the  drawer's  accommodation,  and  that  the  plaintiff  did. 
not  give  any  consideration  to  the  drawer,  to  which  the  plaintiff 
replies  that  it  was  indorsed  to  him  by  the  drawer  for  a  good  con- 
sideration, as  a  consideration  is  presumed,  the  defendant  must 
begin  by  proving  the  w^ant  of  it,  or  some  suspicious  circumstances 
to  throw  the  proof  on  tlie  plaintiff.*     In  a  declaration  upon  a  pol- 

•Kent  V.  Bottoms,  3  Jones  (N.  C),  ^Amos  v.  Hughes,   1  M.  &  R.  464; 

78;   Haleyburton  v.  Kershaw,  3   Des.  Lamand  v.  Leggett,  7  C.  &  P.  615. 
(S.    C. )    105;    Henderson  v.   Hake,   1  'Amos  v.  Hughes,  ante. 

D.  &  B.   (N.  C.)   119.  *  Mills  v.  Barber,   1  M.  &  W.  425; 

^  Leete  v.  Gresham  Ins.  Co..  15  Jur.  Lewis  v.  Parker,  4  Ad.  &  E.  838. 
1161. 


G2-2  Evijue:nce.  [Chap.  18 

icy  of  life  insurance,  the  plaintiff  averred  that  the  deceased  had 
led  a  temperate  life,  which  was  denied  by  the  plea.  It  was  held 
that  the  onus  prohandi,  and  therefore  the  right  to  begin,  was'  with 
the  plaintiff,  as  he  was  bound  to  give  some  evidence  that  the  life 
was  insurable ;  though  it  was  contended  that  intemperance  was 
not  to  bs  presumed.^  And  the  same  rule  has  been  adopted  where 
the  issue  was  raised  on  a  plea  respecting  the  health  of  the  insured  f 
although  in  the  last  case  the  plea,  alleging  a  specific  complaint, 
ended  with  a  verification.  Where  an  issue  on  the  sanity  of  a  per- 
son was  directed  by  chancery,  the  court  presumed  that  the  person 
ordered  to  be  plaintiff  was  to  begin.^ 

So,  generally  if  the  affirmative  of  the  issue  lies  on  the  defend- 
ant, and  the  plaintiff  does  not  seek  to  recover  unascertained  dam- 
ages, the  defendant's  counsel  begins  (after  the  pleadings  have  been 
opened  by  the  plaintiff),  and  has  the  general  reply.^  Thus,  where 
the  defendant,  a  constable,  being  sued  in  trespass  pleaded  a  jus'ti- 
fication  without  the  general  issue,  it  was  held  that  his  counsel, 
admitting  a  demand  of  a  copy  and  perusal  of  the  warrant  and  the 
damages  claimed,  was  entitled  to  begin.®  To  trespass  quare 
clausuni  the  defendant  pleaded  a  right  to  a  watercourse  and  entry 
to  remove  obstructions,  the  plaintiff  traversed  the  right.  It  was 
held  that  the  judge  might  properly  allow  the  defendant  to  begin, 
unless  the  plaintiff  undertook  to  prove  substantia}  damage}^  So 
where  a  defendant  in  replevin  pleads  property  in  a  third  person 
and  not  in  the  plaintiff,  to  which  the  plaintiff  replies  that  the  prop- 
erty is  not  in  such  third  person,  but  in  himself,  the  defendant  is 
entitled  to  begin.^^  And  where,  to  an  action  of  covenant  for  repay- 
ment of  money,  the  defendant  pleaded  that  the  deed  was  given  to 
secure  money  lost  by  gambling,  it  was  held  that  the  defendant  was 
entitled  to  begin. ^^ 

But  ivhere  hy  order  of  court  the  defendant  is  under  an  oUiga- 
tion  to  admit  the  plaintiff's  case,  this  does  not  necessarily  deprive 
the  plaintiff  of  his  right  to  begin.^^     Nor  does  the  admission  by 

"Huekman   v.    Fernie,   3    M.   Sr    W.  » Burrell  v.   Nicholson,    1    M.    &   R. 

505;   Rawlins  v.  Desborough,  2  M.  (t  305. 

^'J^-    ,  '"Chapman  v.  Rawson,  8  Q.  B.  673. 

'Geech  v.  Ingall,   14  M.  &  W.   95;  "  Colstone  v.   Hiscolbs,   1   M.   &  R. 

Ash  by  V.  Rates,  15  M.  &  W.  589.  301. 

'Frank  v.  Frank,  2  M.  &  R.  314.  "Hill  v.  Fox.  1  F   &  F    136 

Cotton   V.   James,   M.   &   M.    275;  "Thwaites    v.    Sainsbury,    5    C.    <% 

Jackson    v,    Hesketh,    2    Stark.    518;  P.  69. 
Pearson  v.  Coles,  1  M,  &  R.  206. 


Sec.  187.]  BufiDEN  of  Pkoof.  625 

the  defendant's  counsel  of  all  the  facts,  the  proof  of  which  are  on 
the  plaintiff,  give  this  defendant  the  right  to  begin,  where  the  ad- 
mission of  these  facts  might  have  been  mxide  in  pleading}^ 

In  many  cases  where  damages,  and  not  the  decision  of  a  mere 
right,  have  been  the  object  of  an  action,  defendants  so  used  ta 
plead  as  to  take  an  affirmative  issue  on  themselves,  and  thereby 
attempt  to  exclude  the  plaintiff's  right  to  a  general  reply.  The 
judges,  however,  came  to  a  resolution  that  "  in  actions  for  libel, 
slander  and  injuries'  to  the  j)erson,  the  plaintiff  shall  begin, 
although  the  affirmative  issue  is  on  the  defendant."  The  resolu- 
tion, however,  is  not  to  be  taken  as  confined  to  those  actions,  or  in- 
troducing a  new  practice,  but  as  a  declaratory  of  a  principle  applic- 
able to  other  actions.-'^  The  general  rule,  therefore,  as  laid  down 
in  this  case  is,  that  wherever  the  record  shows  that  something ,  even 
damages  only,  is  to  he  proved  hy  the  plaintiff,  he  ought  to  begin, 
whether  the  action  be  in  contract  or  tort.  Where  the  damages  are 
of  ascertained  amount  or  must  be  nominal,  then  the  defendant 
may  begin  if  the  pleading  will  admit  of  it.^^ 

The  plaintiff  need  not  in  any  action  prove  the  amount  of  dam- 
age he  alleges  he  has  sustained,  unless  the  defendant  either  deny 
or  state  that  he  does'  not  admit  the  same.  Hence,  where  the  de- 
fense contains  no  such  denial  or  statement,  and  is  affirmative  only, 
the  defendant  will  be  entitled  to  begin.^^  Where  the  affirmative  of 
any  one  material  issue  is  on  the  plaintiff,  and  he  undertakes  to 

"  Pontifex  v.  Jolly,  9  C.  &  P.  202,  interest   not   mentioned    on   the   note. 

Price  V.  Seaward,  C.  &  M.  23.  Cannam  v.  Farmer,  3  Exch.  608.     Jn 

^^  Mercer    v.    Wliall,    5    Q.    B.    447,  trespass,  where  the  defendant  pleaded 

462.  a  custom  to  divert  water,  which  was 

"Mercer  v.  Whall,   ante.  traversed    by    the    plaintiff,     the    de- 

Thus,    in    the    case    last    cited,    in  fendant  was  allowed  to  begin,  though 

covenant  for   dismissing  a   clerk,   the  the  plaintiff's  counsel  asserted  his  in- 

defendant    pleaded     misconduct,    and  tention     to   ask   for   heavy    damages, 

plaintiff  replied  de   injuria,  etc.       It  Bastard  v.  Smith,  2  M.  &  R.  129.     Tn 

was  held  that  plaintiff  ought  to  begin.  the  case  last  cited  Tindal.  C.  J.,  said: 

So  in  an  action  on  a  promissory  note,  "The   plaintiff   might   have   traversed 

to  which  defendant  pleads  inter  alia,  the  custom   and  new  assigned  excess, 

payment    into    court,     and    issue    is  and  then  would  have  had  a  right  lo 

joined  as  to  damages  xdtra,  the  plain-  begin." 

tiff  is  to  begin,  though  other  issues  li<;  "  Laeon  v.   Higgins,   3   Stark.    178; 

on   the   defendant.      Booth    v.   Millns,  Morris  v.  Lotan,  1  M.  &  R.  233;  Eon- 

15  M.  &  W.  669.     On  a  note  by  the  de-  field  v.  Smith,  2  M.  &  R.  519;   3  C.  & 

fendant,  to  which  she  pleads  coverture  P.  463 ;  Woodgate  v.  Potts,  2  C.  &  K. 

when  she  made  it,  on  which  issue  \i  258;  Tindall  v.  Basket,  2  F.  &  F.  644, 

joined,  the  defendant  is  to  begin,  al-  and  1  Taylor  Evid.,  §   355. 
though  the  plaintiff  seeks  to  recover 


624  Evidence.  [Chap.  18 

give  evidence  upon  it,  he  lias  a  right  to  begin  as  to  all  f  and  it 
-seems  that  judgment  by  default  as  to  part  has  the  same  effect, 
tliongh  the  defendant  pleads  affirmatively  as  to  the  residue.^^  But 
where,  to  an  action  on  a  bill  and  on  an  account  stated,  the  defend- 
ant pleaded  payment  to  the  first  and  non-assumpsit  to  the  sec- 
ond count,  it  was  held  that  the  plaintiff  had  no  right  to  begin  un- 
less his  counsel  undertook  to  give  some  evidence  of  the  account 
stated  besides  the  bill.^'^  The  plaintiff  in  replevin  has  the  same 
right  as  in  other  actions,  though  both  partie&  are  actors.^^ 

Sec.  1 88.  Who  Begins  in  Action  to  Recover  Lands. 

In  ejectment  the  defendant  may,  in  some  cases,  by  admitting  a 
title  in  the  plaintiff,  entitle  himself  to  begin,  and  the  same  prin- 
ciples apply  to  an  action  for  the  recovery  of  land  by  a  remedy 
substituted  for  ejectment,  notwithstanding  "the  use  of  pleadings 
therein.  Thus,  where  the  plaintiff  claims  as  heir-at-law,  and  the 
defendant  as  devisee,  it  is  a  settled  rule  that  the  defendant,  by 
admitting  the  jDlaintiff's  pedigree  and  the  dying  seised,  may  en- 
title himself  to  begin  and.  to  reply.^ 

"Rawlins  v.  Desborough,  2  M.  &  &  R.  386.  Where  the  plaintiff  claims 
R.  328 ;  Collier  v.  Clark,  5  Q.  B.  467.  as  devisee  of  A.,  and  the  defendant  as 
"  Woo^  V.  Pringle,  1  M.  &  R.  277.  devisee  under  a  subsequent  will  of  A., 
"Smart  v.  Raynor,  6  C.  &  P.  721;  the  defendant  cannot,  by  admittin;^ 
Mills  V.  Oddy,  G  id.  728;  overruling  the  seisin  of  A.  and  the  prima  facie 
Homan  v.  Thompson.  6  id.  717:  Frith  title  of  the  plaintiff,  entitle  himself 
V.  Melntyre,  7  C.  &  P.  44 ;  Oakelev  v,  to  begin.  WoUaston  v.  Barnes,  over- 
Ooddeen.  2  W  &  F.  656.  '  ruling  Corbett  v.  Corbett,  3  Camp. 
"  Curtis  V.  Wheeler-  M.  &  M.  493.  368.  Generally,  in  order  to  entitle 
^  Revett  V.  Braham,  4  T.  R.  497 ;  the  defendant  to  begin  by  admitting 
Fenn  v.  Johnson;  Adam's  Eject.  (2d  the  plaintift"s  case,  he  must  admit  the 
ed. )  256,  and  Mercer  v.  Whall,  5  Q.  whole  without  qualification.  Pill  v. 
B.  464.  '  Wilson,  1  M.  &  R.  232.  Therefore, 
And  the  same  principle  applies,  al-  where  the  plaintiff  claims  as  the  heir 
though  one  of  the  plaintiffs  had.  since  of  A.,  and  defendant  under  a  con- 
the  death  of  the  testator,  become  as-  veyance  by  A.  in  his  lifetime,  the 
signee  of  an  outstanding  term  in  part  latter  cannot  deprive  the  plaintiff  of 
of  the  land;  for  "the  real  question  in  tlie  right  to  begin  by  only  admitting 
dispute  is  the  validity  of  the  will."  the  heirship  of  the  plaintiff  and  seisin 
Smith  V.  Smart,  1  M.  &  R,  476.  For  of  A.  unless  defeated  by  the  convey- 
the  same  reason,  where  the  plaintiff  ance,  Tucker  v.  Tucker,  M.  &  M.  .536, 
claimed  as  heir  of  C.  and  as  devisee  for  it  is  part  of  the  plaintiff's  case 
and  heir  of  R.,  who  was  C.'s  heir,  and  that  A.  died  seized.  So  where  each 
the  defendant  claimed  as  devisee  of  C,  party  claimed  as  heir,  and  defendant 
the  defendant's  counsel  was  permitted  admitted  that  plaintiff  was  entitled 
to  begin  on  admitting  that  plaintiff  as  heir  if  defendant  was  not  legiti- 
was  heir  of  C.  and  of  R.,  and  entitled  mate;  held,  that  he  could  not  by  so 
to  recover,  imless  defendant  proved  doing  obtain  a  right  to  begin.  War- 
e's will.     Wollaston  v.  Barnes,  1  M.  ren  v.  Bray,  M,  &  M.  166. 


Sec.  189.]  BuEDEN  of  Proof.  625 

An  erroneous  ruling  of  the  court  as  to  who  is  to  begin,  will  not 
necessarily  entitle  the  party  to  a  new  trial/  but  if  the  error  is  clear 
and  an  undue  advantage  may  have  been  given  to  the  successful 
party,  it  is  gi-ound  for  a  new  trial.^ 

Sec.  189.  Right  to  Reply. 

Generally,  the  party  who  begins  has  the  right  to  the  general 
reply  if  the  other  party  calls  witnesses.  If  the  defendant  intro- 
duces evidence  to  impeach  the  plaintiff's  case,  and  also  sets  up  an 
entirely  new  case  which  the  plaintiff  contl-overts  by  evidence,  the 
defendant  in  his  reply  is  confined  to  the  new  case  set  up  by  him.* 
Unless  the  defendant  gives  new  evidence  the  plaintiff  is  not  en- 
titled to  reply,  there  being  no  facts  upon  which  his  counsel  can 
comment.  The  question  as  to  what  is  proper  testimony  m  rebut- 
tal is  purely  within  the  sound  discretion  of  the  trial  court.^ 

•Bradford  v.  Freeman,  5  Exch.  274.  « Starkie's  ed.  384 

•fshley  V.  Bates,  13  M.  &  W.  589;  » Goldsby  v    United  States,  160  U. 

Bather  vf  Brayne,  5  C.  B.  655.  S.  70,  16  S.  Ct.  216. 


'CHAPTER  XIX. 
Pkima  Facie  Evidence. 

Section  190.  General  rule  as  to.     Illustrations. 
191.  As  to  receipts,  signatures,  etc. 

Sec.  190.  General  Rule  as  to.  Illustrations. 

While  it  is  true  that  a  person  seeking  a  recovery  of  another  in 
an  action  at  law  is  charged  with  the  burden  of  proving  the  issue 
in  his  favor,  jet  whenever  the  law  interposes  any  presumptions  in 
his  favor,  it  often  happens  that  he  is  only  called  upon  to  make 
prima  facie  proof.  Therefore  it  is  material  to  know  what,  in  law,, 
is  regarded  as  prima  facie  evidence,  so  that  its  production  by  a 
party  puts  the  other  party  in  a  position  that  he  must  rebut  it,  to 
prevent  a  recovery  against  him.  Prima  facie  evidence  means  evi- 
dence which  is  sufficient  to  establish  the  fact  unless  rebutted.  A! 
prima  facie  case  cannot  prevail  if  rebutted  or  the  contrary  shown 
by  competent  proof,  so  if  an  assessment  roll  makes  a  prima 
facie  case  in  a  proceeding  to  effect  betterments  that  the  assessment 
is  correct,  where  evidence  is  introduced  of  the  injustice  of  the  as- 
sessment then  this  evidence  must  be  met  by  other  testimony.^ 
Thus,  in  an  action  upon  a  promissory  note,  unless  a  plea  or  notice 
denying  its  execution  by  the  defendant  is  filed,  the  plaintiff  ig  only 
required,  in  the  first  instance,  to  produce  the  note  on  trial,  and 
the  law  presuming  from  its  possession  by  him  that  it  is  still  an 
outstanding  obligation  upon  the  makers  and  indorsers,  its  produc- 
tion makes,  for  the  plaintiff,  a  prima  facie  case,  and  the  burden  is 
imposed  upon  the  defendant  to  overcome  the  effect  of  this  prima 
facie  case,  or  the  plaintiff  will  be  entitled  to  a  judgment  for  the 
amount  apparently  due  upon  it.^  So,  indorsements  of  interest  on 
promissory  notes  are  prima  facie  evidence  of  payment  by  the 
maker.^ 

^Wathen  v.  Allison  Ditch  District  *  Conway  v.  Williams,   2  Hun    (N. 

No.   2,   213   111.    138,   72    N.    E.   781;       Y.),  642. 

Kelly  V.  Jackson,  6  Pet,  (U.  S.)  622.  "Bell  v.  Campbell,  123  Mo.  1,  25  S^ 

W.  359,  45  Am.  St.  Rep.  505. 
(626) 


Sec.  190.] 


Peima  Facie  Evidence. 


627 


Statsments  of  account  furnished  by  a  bank  to  a  corporation  from 
time  to  time  are  prima  facie  evidence  of  the  state  of  the  account 
between  the  bank  and  the  corporation.*  Although  a  book  account 
against  a  man  may  afford  p^ima  facie  evidence  of  indebtedness 
a  book  account  against  a  married  woman  is  not  prima  facie  proof 
on  account  of  the  disability  of  the  married  woman  and  the  liabil- 
ity of  a  husband  for  ths  support  of  his  family.^  The  recording  of 
a  deed  may  be  prima  facie  evidence  of  delivery,  but  not  when  other 
circumstances  show  that  delivery  was  unlikely.* 

So,  in  an  action  of  trover,  possession  of  a  chattel  is  prima  facie 
evidence  of  title,  and  imposes  upon  the  plaintiff  the  onus  of  prov- 
ing title  in  the  chattel  in  himself,  or  that  he  has  a  right  to  its  pos- 
session as  against  the  defendant,  and  he  must  do  this  by  suck 
proof  as  fully  overcomes  the  presumption  of  property  in  him  who 
has  possession.^ 


*Pauly  V.  Pauly,  107  Cal.  8,  40  P. 
29,  48  Am.  St.  Rep.  98. 

^  Moore  v.  Copley,  165  Penn.  State 
294,  30  A.  829.  44  Am.  St.  Rep.  G64. 

'  Egan  V.  Horrigan,  96  Maine,  46, 
51   A.  246. 

'Pinkham  v.  Gear,  3  N.  H.  484; 
Finch  V.  Alston,  2  S.  &  P.  (Ala.)  83; 
Drummond  v.  Hopper,  4  Harr.  (Del./ 
327;  Trougott  v.  Byers,  5  Cow.  (N, 
Y.)  480;  Goodwin  v.  Garr,  8  Cal. 
615;  Entreken  V.  Brown,  32  Penn.  St. 
364 ;  Vining  v.  Baker,  53  Me.  44 ;  Fish 
V.   Skut,   21   Barb.    (N.   Y.)    333. 

This  presumption  of  title  to  per- 
sonal property  in  him  who  has  pos- 
session is  so  strong  that  it  is  held 
that  all  species  of  personal  property 
found  among  the  effects  of  a  deceased 
person  belong  to  his  heirs,  and  that 
if  any  person  claims  to  be  the  owner 
thereof  he  must  make  out  his  title  by 
clear  and  unmistakable  proof  of  own- 
ership in  him,  and  beyond  a  doubt, 
Succession  of  Alexander,  18  La.  Ann. 
337 ;  but  possession  of  personal  prop- 
erty by  the  consent  of  the  true  owner 
does  not  raise  a  legal  presumption 
of  title  against  the  owner,  but  only 
against  others,  Magee  v.  Scott,  9 
Cush.  (Mass.)  148;  and  where  prop- 
erty is  found  in  the  possession  of  sev- 
eral, the  law  refers  the  possession  to 
him  who  has  the  true  title,  and  this 
is  the  rule  both  as  to  real  and  per- 
sonal estate,  Maples  v.  Maples,  Rice  (S. 


C. ),  300;  Lenoir  v.  Rainey,  15  Ala. 
667 ;  Governor  v.  Campbell,  17  id. 
566;  Miller  v.  Fraley,  23  Ark.  735; 
so  prior  possession  of  land  is  prima, 
facie  evidence  of  a  title  in  fee,  and  is 
good  until  a  better  title  is  proved, 
Herbert  v.  Herbert,  Breese,  278;  Haw- 
kins v.  County  Commissioners,  2  Allen 

(Mass.),  251;  Ward  v.  Mcintosh,  12 
Ohio  St.  231;  Hunt  v.  Titter,  15  Ind. 
318;  but  such  title  may  be  overcome 
by  one  who  has  a  better  title  thereto, 
and  when  a  better  title  is  established, 
the  possession  of  the  premises,  if  short 
of  the  statutory  period,  will  be  pre- 
sumed to  be  in  subordination  to  the 
title  of  the  real  owner,  as  adverse  pos- 
session is  never  presumed  by  the  law. 
But  the  onus  of  establishing  the  real 
title  is  upon  him  who  sets  it  up ;  Allen 

.  Harper,  59  Me.  371 ;  Baldwin  v.  Buf- 
falo, 35  N.  Y.  375;  Rowland  v.  Up- 
dike, 28  jST.  J.  101;  Brandt  v.  Ogden, 

1  Johns.  (N.  Y.)  156;  Edmonston  v. 
Shelton,  4  Jones  (N.  C.) ,  451 ;  Austin 
V.  Bailey,  37  Vt.  219;  McCall  v. 
Pryor,  17  Ala.  533;  Russell  v.  Marks, 
3  Met.   (Ky.)   57;   Rochell  v.  Holmes, 

2  Bay  (S.  C),  487;  but  when  title 
is  claimed  by  adverse  possession  v.'itli- 
out  color  of  title,  the  onus,  as  against 
one  having  a  clear  documentary  title, 
is  on  him  who  sets  up  the  possessory 
title;  Rowland  v.  Updike,  28  N.  J. 
101;  Stewart  v.  Cheatham,  3  Yerg. 
(Tenn.)   60;  Clifton  v.  Lilly,  12  Tex. 


628 


EviDEXCE.  [Chap.  19 


Where  the  death  of  a  party  becomes  a  material  issue,  a  grant  o^f 
letters  of  administration  is  prima  facie  sufficient  evidence  of  hfs 
death  f  so  proof  that  he  was  missing  at  a  particular  time,  and  the 
circulation  of  a  report  and  general  belief  that  he  was  dead,  is 
prima  facie  evidence  of  his  death  f  or  that  he  has  been  absent  and 
not  heard  from  for  seven  years/°  The  record  of  the  discharge  of 
an  insolvent  or  bankrupt  debtor  is  prim^  facie  evidence  of  notice 
to  all  his  creditors  ;^^  so  an  entry  in  a  day-book  is  prim^  facie  evi- 
dence of  the  price  and  delivery  of  the  goods  charged  there  ;^^  so  an 
entry  in  a  log-book  is  prima  facie  evidence  of  the  truth  of  every 
particular  of  such  entry  f  so  an  acknowledgment  of  the  payment 
of  the  purchase  money  in  a  deed  is  prima  facie  evidence  of  the 
fact ;"  so  a  receipt  is  pima  facie  evidence  of  all  it  purj^wrts  to  be, 
and  no  more;^^  therefore  a  receipt  for  so  much  money  for  property 
delivered  is  not  pima  facie  evidence  that  it  is  in  full  for  all  such 
property  previously  delivered  ;^^  so  a  bill  of  lading,"  or  a  certi- 
ficate of  preemption  has  been  held  to  be  pnma  facie  evidence  of 
title  as  against  any  other  certificate  or  survey. ^^  The  record  of  a 
recovery  in  an  ejectment  suit  is  prima  facie  evidence  of  title  to  the 

130-     and    all   presumptions    will    be  (Penn.)  ,173;    Eagle    v.     Emmett,   4 
at'ainst  him,  and  he  will  be  required  Bradf.   (N.  Y.)    117;  Osborn  v.  Allen, 
to  make  out   his   pos?essorv   title   by  26  N.  J.  388;  Newman  v.  Jenkms,  10 
strict  proof ;  Edmonston  V.  Shelton,  4  Pick.     (Mass.)    515;    Stevens    v.    Mc- 
Jones   (N.  C),  451;   Baldwin  v.  Buf-  Namara,  36  Me.  176;  Crawford  v.  EJ- 
falo,   35   N.   Y.   375;    but   as   against  liott,   1   Houst.    (Del.)    465;    Smith  v. 
every    person,    except    one    having    a  Knowlton,    11    N.   H.    191;    Caper   v. 
clear  documentary  title,  possession  is  Thurmond,   1   Ga.  538:   Tilley  v.   Til- 
sufficient    and   all   presumptions    will  ley,  2   Bland    (Md.),   436;    Primm   v. 
be  made  in  its  favor.    Nixon  v.  Carce,  Stewart,  7  Tex.   178;   Spurr  v.  Taim- 
28  Miss.  414;  Clifton  v.  Lillv,  12  Tex.  bull,  1  A.  K.  Marsh.   (Ky.)  278;  Win- 
130-    Wendell  v.   Blanchard.  2  N.  H.  ship  v.  Connor,  42  N.  H.  341;  Stmch- 
456.     It  must  be   understood   that   a  field  v.  Emerson,  52  Me.  465;   Hulett 
presumption  of  title  from  possession  v.  Hulett,  40  Vt.  384. 
never  arises  except  when  the  posses-  "  Jay  v.  Slack,  4  N.  J.  L.  77. 
sion   is   perfectly   consistent  with    an  ''  Ducoign   v.    Schneppl,     1     Yeates 
unqualified    ownership.      When    it    is  (Penn.),  347;   McCoul  v.   Lekamp,   2 
shown  that  it  was  taken  in  subordin-  ■V\nieat.   (U.  S.)   111. 
ation  to  the  title  of  another,  and  that  "Douglass  v.  Eyre,  Gilpin.  146. 
only  a  qualified  interest  or  estate  less  "  Thallhimer  v.  Brinkerhoflf,  6  Cow. 
than  an  absolute  title  was  claimed,  a  (N.  Y.)   90;  Gully  v.  Grubbs,  1  J.  J. 
grant  will  not  be   presumed.     Colvin  Marsh.    (Ky.)    387. 
v.  Warford,  20  Md.  357.  ^"McDowell  v.  Lemaitre.  2  N.  &  M. 
» French   v.  Frazer,  7  J.   J.  Marsh.  320. 

(Ky.)    425.  "Reed  v.  Phillips,  6  111.  39. 

"Jackson   v.  Etz,  5  Cow.    (N.  Y.)  "Benjamin    v.    Sinclair,    1    Bailey 

314.  (S.  C),   174. 

'"  Whiteside's  Appeal,  23  Penn.  St.  "  Rector  v.  Welch,  1  Mo.  334. 

114;    Bradley   v.    Bradley,   4    Whart. 


Sec.  190.]  Prima  Pacie  Evidence.  ^-^ 

premises  involved  in  the  action;-  a  decree  in  admiralty  restorh^ 
he  libeled  property  to  the  claimant  is  pr-.wm  facie  evidence  ol  tit  e 
thereto;-  a  judgment  on  an  original  attachment  in  another  State 
s  ,W  faL  evidence  of  the  debt,  even  though  obtained  withoivt 
notice -^^  so  is  a  judgment  against  a  party  not  brought  into  couit, 
"  i    a'  sentence  in  I  foreign  court  of  admiralty  unless  it  contains 
nough  to  rebut  such  presumption  f  so,  where  an  act  o    the  legisla- 
ure  direct,  that  the  certificate  of  a  public  officer  shall  be  evidence, 
a  paper  produced  with  his  name  will  be  prima  facie  evidence  un- 
less I  is  proved  not  to  have  been  signed  by  him  f  so  whereJ^ook 
of  account  or  papers  contain  distinct  settlements  made  at  diff^^^^ 
times,  the  last  settlement  is  prima  facie  evidence  of  the  fact  that  it 
embraces  all  the  others;-  so  a  receipt  acknowledging  pajmen    of 
a  subsequent  quarter's  rent  is  treated  as  prvma  facte  evidence  tha 
^n  the  prior  rlnt  is  paid  f  the  return  of  an  officer  upon  a  warrant 
is  regarded  as  prima  facie  evidence  of  an  arrest  against  both  the 
grand  juror  and  officer ;-  so  the  date  of  a  writ  or  other  process  is 
prima  facie  evidence  of  the  true  time  when  it  was  .^^^^^d,     but 
fl,e  date  of  a  deed  or  contract  is  only  prima  facie  evidence^of  the 
time  when  it  was  executed  as  between  the  parties  thereto        ihe 
return  of  a  sheriff  is  prima  facie  evidence  of  what  was  done  by 
him  in  a  controversy  between  strangers  to  the  suit  m  which  it  was 
niade;^«  so  the  return  of  a  sheriff  on  the  back  o±  an  attachment  is 
prima  facie  evidence  of  the  property,  so  as  to  bind  it  on  execution 
?or  the  payment  of  the  debt;^^  so  an  execution  book  kept  by  the 
derk  is  prima  facie  evidence  of  the  truth  of  all  entries  made^m  it, 
but  it  may  be  impeached  by  extrinsic  evidence;-  an  order  drawn 
upon  one  for  money  for  value  received  is  prvma  facie  evidence  that 
the  drawer  has  received  the  money  or  its  equivalent ;    so  an  order 
payable  out  of  a  specific  fund  is  prima  facie  evidence  of  debt; 

"  Chirac  V.  Reinecker,  2  Pet.  (U.  S. )       ^^^  Brewer  v.  Knapp,  1  Pick.  (Mass.) 

''^0  Thompson     V.     Stewart,   3    Conn.      '^  fllen^  v.  Gray,  ^^^^^ 

''i'Hiller  V.  Pennington   2  Stew.  390.       v.  ^Mtc^be    2  K^^^^^  ^^^^ 

"  Taylor  v.  Pettibone,  16  Johns.  (N.  ^^  Baker^y.^BlacK^^  ^_,^    ^^^^ 


Y.)  66.                                    nair,pa' Pn^  «Huyer  V.  Osborne,   1  Bay,  319. 

"Johnsonv.  Ludlow,  iCaines   Ca,.  3=?aJlor  v.    Dundas,   1   Wash,    (U. 

-Prather' V.    Johnson,    3    H.   &    J.  S.)^^92.^^  ^    ^^^^^^  ^  ^_  ^    ^^ 

(Md.)   487.  3in,„.lp   V    Beers     3    J.    J-   Marsh. 

»  Dorsey  v.  Kollock,  Coxe,  35.  )    170. 


630  Evidence.  [Chap.  19 

so  where  an  order  is  given  bj  A.  to  B.  on  C.  for  certain  property, 
B.'s  receipt  ujwn  the  order  for  the  property  is  pima  facie  evi- 
dence in  an  action  by  C.  against  A.  of  the  delivery  of  the 
property."'' 

The  fact  that  a  testator  is  under  guardianship  as  a  non  compos 
at  the  time  of  the  execution  of  a  will  is  prima  facie  evidence  that 
the  testator  had  not  the  requisite  mental  capacity  to  make  it.^^  The 
production  of  a  contract  or  deed  bearing  the  same  name  with  the 
party  in  the  suit  is  prima  facie  evidence  of  identity ;"  but  other- 
wise if  the  name  is  not  strictly  identical  ;^^  and  where  a  party 
claims  an  interest  in  an  estate,  something  more  than  identity  of 
name  is  required.^^ 

The  invoice  of  a  cargo  is,  against  the  general  principles  of  evi- 
dence, uniformly  admitted  as  prima  facie  evidence  of  the  value 
of  the  cargo,  but  of  nothing  more.*"  The  registry  of  a  vessel  in  a 
certain  name  is  not  even  prima  facie  evidence  that  such  person  was 
the  owner  of  the  vessel.*^  A  register's  deed,  purporting  to  be  a 
conveyance  of  land  sold  for  taxes,  is  p'rima  facie  evidence  that  his 
proceedings  were  regular.*'  Proof  that  a  person  has  resided  in  a 
place  is  prim-a  facie  evidence  that  such  place  is  still  his  residence.*'^ 
Proof  of  the  execution  and  registry  of  a  mortgage  deed  is  priyna 
facie  evidence  of  title  in  the  mortgagee  without  the  production  of 
the  note  which  it  was  given  to  secure.**  The  return  of  a  constable 
on  a  writ  is  prima  facie  evidence  of  the  facts  contained  in  it,  but 
may  be  rebutted.*^  The  fact  that  a  vessel  was  seaworthy  when  a 
policy  attached  is  prima  facie  evidence  that  it  continued  so  during 
the  time  of  the  risk.*^  The  agreement  of  adjoining  owners  upon 
a  dividing  line  is  prima  facie  evidence  that  it  is  the  true  line.*'' 

**Rawson  v.  Adams,  17  Johns.    (N.  (X.  Y. )   201;  Leonard  v.  Huntington, 

Y.)    130.  15  id.  303. 

^' Stone  V.  Damon.   12  Mass.  488.  ^^  Bodly  v.   Hood,   2    A.   K.   Marsli 

«' Jackson  v.  King,  5  Cow.    (N.  Y.)  (Kv.)    244. 

237  ;  Brown  v.  Metz.  33  111.  339  :  Gates  "  Prother  v.  Palmer,  4  Pike   ( Ark.) , 

V.  Loftus,  3  A.  K.  Marsh.    (Kv.)   202;  456. 

Cooper  V.  Parton.   1   Dur.    (Ky.)    92;  "Davis  v.  Mills,  18  Pick.    (Mass.) 

Gitt  V.  Watson,  18  Mo.  274.   '  394. 

"'Ellsworth  V.  Moore,  5  Iowa,  486:  ^^  Perrvman    v.    The    State,    8    Mo. 

Burford  v.  McCue,  53  Penn.  St.  427.  208. 

"Maers  v.   Bunker,  29  N.   H.   420.  ""Martin    v.    Fishing    Ins.    Co..    20 

*«  Graham  v.  Penn.  Ins.  Co.,  Wash.,  Pick.    (Mass.)   389. 

C.   C.    (U.  S.)    113.  *'Sparhawk     v.     Bullard,     1     Met. 

"Sharp  V.  U.  S.  Ins.  Co.,  14  Johns.  (Mass.)    95. 


Sec.  191.]  Prima  Facie  Evidence.  631 

Sec.    191.  As  to  Receipts,    Signatures,   Etc.— Evidence  to  vary 
or  explain  receipts,  see  §  22,  ante. 

A  receipt  for  money,  and  expressed  to  be  in  full  of  all  demands, 
is,  however,  only  lyvima  facie  evidence  of  payment,  and  may  be 
contradicted,  varied  or  explained.  It  is  not  subject  to  the 
rule  which  excludes  parol  evidence  to  contradict  or  vary  written 
instruments.^  But  all  presumptions  are  in  favor  of  the  receipt,  and 
the  party  attacking  it  must  clearly  show  that  its  legal  eifect  is  not  ■ 
as  expressed  to  be  on  the  face  of  it ;  and  when  the  evidence  is  con- 
tradictory, and  the  evidence  on  the  one  side  is  entitled  to  as  much 
weight  as  that  on  the  other,  the  receipt  will  stand.^ 

The  seal  of  the  general  land  office,  and  tlie  signature  of  the 
commissioner  thereof,  prima  facie  prove  themselves.^  Recitals  of 
title  in  an  old  deed,  where  possession  accompanied  the  deed,  are 
'prima  facie  evidence  against  any  person  claiming  title  under  the 
grantor  previous  to  such  deed."  The  possession  of  checks,  orders 
or  drafts  by  the  corporation  or  person  on  whom  they  are  drawn, 
is  prima  facie  evidence  that  they  have  been  paid.^  A  settlement 
between  two  parties  is  prima  facie  evidence  of  a  settlement  of  all 
demands,  but  may  be  rebutted,  and  is'  no  bar  to  a  recovery  for  any 
matters  not  embraced  therein."  Kn  indorsement  on  a  note  is 
priyna  facie  evidence  of  payment  of  the  amount  designated."^  A 
receipt  in  full  of  all  demands  is  prima  facie  evidence  of  payment 
of  all  notes,  accounts  and  claims  existing  at  the  time  of  the  re- 
ceipt.^ The  acceptance,  by  a  municipal  corporation,  of  work 
which  it  was  authorized  to  contract  for,  is  prima  facie  evidence 
that  the  work  is  completed.^  Proof  of  an  entry  upon  another's 
premises  is  prima  facie  sufficient  to  support  an  action  of  trespess, 

1  Hill  V.  Robinson,  3  Jones  (N.  C),  -Borden   v.    Hope,   ante;     Levi     v. 

501;    Borden   v.    Hope,   21    La.    Ann.  Carrick,  13  Iowa,  344. 

581;   Batdorf  v.  Albert,  59  Penn.  St.  ^Harris   v.    Doe,   4    Blackf.    (Ind.) 

59 ;  Dolan  v.  Frieberj,  4  W.  Va.   101 ;  369. 

The  Galloway  C.  Morris,  2  Abb.    (U.  ''James     v.     Letzler,     8    W.    &    b. 

S.)    164;  Middlesex  v.  Thomas,  20  N.  (Penn.)   192. 

J.  39;  Pati's  Case,  4  Ct.  of  Claims  (U.  ^  Union   Canal  Co.   v.  Lloyd,   4   W. 

S.),  523;   Joslyn  v.  Capron.  64  Barb.  &  S.  393. 

(N    Y  )   599;  Driver  v.  Hudspeth,  16  "Nichols  v.  Scott,  12  Vt.  47. 

Ala.    348;    Brook    v.    Quinn,    13    Md.  'Graves   v.    Moor,    7    Monr.    (Ky.) 

379-   Rourke  v.  Storv.  4  E.  D.  Smith  341. 

(N    Y    C    P.),  54;   Mt.  Olivet  Ceme-  « Marston  v.  Wilcox,  3  III.  2^0. 

tery  Co.  v.  Shubert,  2  Head.   (Tenn.)  "New    Orleans    v.    H^lpin,    17    La. 

116;    Gibson  v.   Hanna.   12  Mo.   162;  Ann.   185. 
Smith  v.  Ballou,  I  R.  I.  496. 


632 


Evidence.  [Chap.  1& 


and  throws  the  onus  upon  the  defendant  of  proving  that  his  entry 
was  lawful.^" 

Every  person  is  presumed  to  know  the  contents  of  all  papers 
to  which  he  himself  suhscribes,  or  authorizes  another  to  sign  his 
name,  whether  he  can  read  or  write,  and  the  production  of  an 
instrument  thus  signed  is  prima  facie  evidence  of  all  it  contains," 
and  that  he  knew  the  legal  effect  thereof;^  but  such  evidence  may 
be  rebutted  by  proof  of  fraud  or  of  undue  advantage." 

"•Belverman    v.    State,     16    Texas,  ball,  10  Cush.   (Mass.)   373;  Clem.  v. 

130  N.  &  L.  E.  R.  Co.,  9  Ind.  488. 

"Harris  v.  Story,  2  E.  D.   Smith  "Mears     v.     Graham,     8     Blackf. 

(N.  Y.   C,   P.),  363,-    Bank  v.  Kim-  (Ind.)    144. 

— «-  "Harris  v.  Story,  ante. 


CHAPTER  XX. 

Public  Documents. 

Section  192.  In  general. 

193.  Legislative  journals. 

194.  Statutes. 

195.  Common   law  of   another  state  or  county. 

196.  Records  of  births,  marriages  and  deaths. 

197.  Ship   registers. 

198.  Patents  for  inventions. 

199.  Patents  for  lands. 

200.  Copies. 

201.  Official  certificates. 

202.  Certificates  by  executive   officers. 

203.  Certificates  by  clerks. 

204.  Certificates  by  judicial  officers. 

205.  Notarial    certificates. 

206.  Marine  protests  and  surveys. 

207.  Consular  certificates. 

2U8.  Certificates  by  appraisers,  inspectors,  etc. 

209.  Certificates  by  land  officers. 

210.  Surveys  of  land. 

211.  United    States   departmental   records. 

212.  Weather  reports. 

213.  Land  office  papers  and   records. 

214.  Custom  house  records. 

215.  State  land  office  papers. 

216.  State  grants. 

217.  State  records. 

218.  Verdicts  and  interlocutory  matters. 

219.  Judgments.     Proof  of. 

220.  Proof  of  foreign  judgments. 

221.  Between  what  parties  admissible. 

222.  Judgment   conclusive   of   fact   recorded.      Collateral    and   direct 

attack. 

223.  Xot  conclusive  on  immaterial  averments. 

224.  Effect   of  judgment. 

225.  Distinction  between  judgments  of  courts  of  exclusive  and  con- 

current jurisdiction. 

226.  Judgments  in  rem. 

227.  Proceedings   between   strangers. 

228.  Pule  with    reference  to   real    and   nominal   parties. 

229.  Pule  as  to  judgment  in  ejectment. 

230.  When  the  parties  are  the  same,  but  not  suing  in  the  same  right. 

231.  As  to  what  matters  a  judgment  concludes  a  party. 

232.  Effect  of  foreign   judgments. 

233.  Attack  on    foreign   judgments. 

Sec.  192.    In  General. 

Writings  may  be  divided  into  two  classes,  private  and  public 

Tbe  former  are  those  which  are  the  property  and  in  the  custody 

(633) 


'634  Evidence.  [Chap.  20 

of  individuals  or  corporations,  and  the  L'ltter  are  those  which  are 
tlie  property  and  under  the  control  of  some  department  of  the 
government,  as  legislative  journals,  records  of  courts,  statutes, 
proclamations,  ordinances,  etc.,  and  other  writings  of  a  similar 
character.  The  mode  of  proving  the  contents  of  these  documents 
when  they  become  material,  is  of  considerable  importance  to  the 
ja-actitioner,  and  the  object  of  this  chapter  is  to  furnish  that  infor- 
mation. As  a  matter  of  convenience  it  is  held  that  public  records 
may,  independent  of  statute,  be  given  by  certified  copies  by  the 
officer  having  such  records  in  charge.^  Also  entries  in  public  rec- 
ords may  be  proved  by  examined  copies  made  by  persons  not  Hav- 
ing their  official  custody.  ^^  And  the  original  records  are 
certainly  at  least  as  good  evidence  as  any  copies  could 
be.  If  iDroduced  by  the  official  custodian,  they  are  ad- 
mitted without  further  attestation.  Otherwise  there  must  be 
other  evidence  of  their  character.  But  there  need  not  be  a  com- 
bination of  the  two  methods  of  authentication.  Either  alone  is  suf- 
ficient. And  where  the  records  are  identified  by  an  unofficial  wit- 
ness, it  ig  not  material  that  his  possession  of  them  is  unexplained, 
or  even  that  it  is  wrongful.^  The  fact  that  a  record  book 
does  not  contain  an  entry  of  a  given  kind  may  be  shown  by  the 
oral  testimony  of  one  who  has  examined  the  record.^  Original 
records  from  a  foreign  country  may  be  admitted  where  their 
removal  is  allowed  and  when  proved  to  come  from  the  proper 
custody.* 

Sec.  193.  Legislative  Journals. 

Where  it  becomes  material  to  establish  what  was  done  by  a  leg- 
islative body  at  a  particular  session  respecting  a  certain  matter,  it 
may  be  done  by  producing  the  journals  themselves,  where  this  can 

^  Yoimglove  v.  Knox,  44  Fla.  743,  33  plain  how  he  came  by  the  paper. 

So.  427.  'MePhelemy          v.          McPhelemy, 

'a  Cooper    v.    Armstrong,     4    Kan  (Conn.,    1905),    61    A.    477.      Pariah 

30;    Winham  v.   Kline,   77   Mo.   App.  record      of      births      and     marriages. 

36;   Greenleaf  on  Evidence,  vol.   1,   §  Greenfield  v.   Mclntire,    112   Ga.   691, 

485.  38    S.    E.    44;      State    v.    Rosenthal, 

="  State  V.  Pendleton.   67   Kan.    180,  (Wis.,   1905),    102   N.   W.   49;    Syke? 

72   Pac.  527,  where  an  original  mar-  v.  Beck,  12  N.  D.  242.  96  N.  W.  844. 

riage  license  was  put  in  evidence  by  852,   to  the  effect  that  the  examina- 

the  recorder  of  the  county  who  held  tion  must  be  by  the  custodian. 

oflTice  at  the  time  when  the  paper  wa?  *  Williams    v.    Conger,    125    U.    S. 

if=supd    by    the    deputy    recorder,    nl-  397.    410,  8  S.  Ct.  933.     Mexican  land 

though  the  witness  no  longer  had  any  grant, 
ollicial    possession  and   could   not   ex- 


Sec.  193.] 


Public  Documents. 


635 


be  done,  or  by  the  production  of  a  printed  copy  thereof  published 
by  authority  of  the  State/  or  by  a  copy  thereof  duly  certified  by 
the  Secretary  of  State.  These  journals  being  the  record  of  the  do- 
ings of  a  legislative  body,  import  absolute  veritr^^,  and  cannot  be 
impeached  except  by  the  legislature  itself.^  Thus  where  the  jour- 
nals show  only  that  an  order  was  reported,  it  was'  held  that  parol 
evidence  was  not  admissible  to  show  that  it  was  passed  by  that 
body.^ 


^Root  V.  King,  7  Cow.  (N.  Y.) 
613.  The  court  should  inspect  these 
journals  as  it  would  any  other  re- 
cord. Coleman  v.  Dobbins,  8  Ind. 
15G;  Albertson  v.  Robinson,  1  Dall. 
(Penn.)  9.  Journals  of  Congress, 
printed,  have  been  admitted  without 
other  proof  of  their  authenticity. 
Com.  V.  Dedougchamps,  Whart.  Dig. 
280.  But  generally  proof  is  required 
that  the  printed  journals  of  a  legis- 
lative body  were  printed  by  authority. 
Root  V.  King,  7  Cow.  (N.  Y.)  613. 
But  a  printed  copy  of  public  aocu- 
ments  proved  to  have  been  transmitted 
to  a  legislative  body,  and  printed  by 
the  printers  to  such  body,  are  admissi- 
ble without  other  authentication. 
Radcliffe  v.  United  States  Ins.  Co.,  7- 
Johns.    (N.  Y.)    50. 

=  McCullough  V.  State,  11  Ind.  424; 
Town  of  Wilson  v.  Markley  (N.  C), 
45  S.  E.  1023.  As  to  evidence  to  con- 
tradict or  explain  legislative  journals, 
see  §  35,  ante. 

*  Covington  v.  Ludlow.  1  Met.  (Ky. ) 
295. 

But  in  Mississippi  it  is  held  that 
such  journals  do  not  import  absolute 
verity,  and  are  not  conclusive  of  the 
facts  stated  in  them.  Green  v.  Weller, 
.32  Miss.  650.  Indeed  it  is  held  that 
they  are  admissible  to  overturn  even 
the  statute  roll;  Chicot  County  v. 
Davies,  40  Ark.  206.  See  also  Stale 
V.  McClelland  (Neb.).  25  N.  W.  Rep. 
77 ;  but  in  this  case  it  was  held  that 
-where  there  is  a  discrepancy  between 
the  manuscript  and  the  printed  min- 
utes of  the  proceedings  of  the  legis- 
lature, the  manuscript  will  prevail. 
The  journal  of  a  legislative  body  is 
admissible  to  show  that  a  bill  which 
has  been  certified  by  the  presiding 
officer  of  a  legislative  body  as  duly 
passed  was  not  in  fact  passed,  thus 
overthrowing   the     prima     facie    an.l 


presumptive  efTect  of  such  certificate; 
State  v.  McClelland,  ante;  or  evea 
when  certified  by  the  presiding  officers 
and  signed  by  the  governor.  Spangler 
V.  Jacoby,  14  111.  297;  People  v.  Ma- 
honey,  13  Mich.  48*;  State  v.  Hast- 
ings, 24  Minn.  78;  Coleman  v.  Dob- 
bins, 8  Ind.  156;  Southwark  Bank  v. 
Com.,  26  Penn.  St.  446;  People  v. 
Starne,  35  111.  121;  People  v.  Purdy, 
2  Hill  (X.  Y.),  31;  Berry  v.  Balti- 
more, etc.,  R.  R.  Co.,  41  Md.  446. 
Opinions  of  Justices,  35  N.  H.  579; 
52  id.  522;  45  id.  607.  People  v.  Su- 
pervisors, 8  N.  Y.  318;  Jones  v. 
Hutchinson.  43  Ala.  721.  See,  how- 
ever, holding  that  the  validity  of  an 
invalid  statute  duly  certified  by  th^ 
presiding  officers  of  a  legislative  body 
cannot  be  impeached  bv  the  journals ; 
Pacific  R.  R.  Co.  v.  The  Governor,  23 
Mo.  353.  See,  also,  Fouke  v.  Flem- 
ing, 13  Md.  392;  Clare  v.  State,  5 
Iowa,  509;  Green  v.  Weller,  32  Miss. 
651:  Evans  v.  Bracom,  30  Ind.  514; 
People  V.  Devlin.  33  N.  Y.  269 ;  Pang- 
born  V.  Young,  33  N.  J.  L.  29.  Says 
Mr.  Phillips,  2  Phillips'  Ev.  276; 
"These  are  the  documents  pe- 
culiarly appropriated  to  the  pur- 
pose of  preserving  the  memory  of 
such  proceedings,  which  do  not  appear 
capable  of  other  authentic  or  satis- 
factory proof."  These  journals  hav>> 
been  admitted  where  limitations  upon 
peerages  have  been  recited  therein 
without  other  pj-oof  of  their  authen- 
ticity (Lord  Duff  rein's  Case,  4  C.  &  F. 
468),  and  generally  the  journals  of 
either  branch  of  a  legislative  body 
are  admissible  to  prove  what  was 
done  by  that  body  in  reference  to  s. 
particular  matter,  where  it  is  the 
duty  of  the  officers  thereof  to  keep  a 
faithful  record  thereof.  R.  v.  Frank- 
lin. 17  How.  St.  Tr.  636.  Proclama- 
tion .  issued   by   the   President   of   tho 


636 


Evidence. 


[Chap.  20 


Sec.  194.  Statutes. 

Where  a  statute  of  a  sister  State  or  of  one  of  the  territories 
is  to  be  proved  the  proof  must  conform  to  the  act  of  Congress  or 
else  to  the  provisions  of  the  statutes  of  the  forum.  A  book  pur- 
porting to  contain  the  written  laws  of  a  foreign  jurisdiction  proves 
itself  and  is  admissible  as  evidence  without  other  authentication, 
but  its  authenticity  cannot  be  shown  by  the  mere  statement  of  coun- 
sel as  to  what  it  is.  So  an  offer  of  an  extract  from  an  alleged 
statute  book  without  showing  its  title  page,  is  insufficient.^  Evi- 
dence of  a  statute  of  another  State  should  consist  of  transcripts  of 
those  statutes  published  under  authority  of  the  legislature  of  that 
State.^     Where  a  certain  section  from  a  code  of  laws  of  another 


United   States,  or  the  governor   of  a 
State,   published   by  authority,   recit- 
ing a  certain  condition  of  things,   is 
evidence  that  such  condition  of  thintjs 
existed   (R.  v.  Holt,  5  T.  E.  443;  Pic- 
ton's  Case,  30  How.  St.  Tr.  493 ;  Judd's 
Cace,  8  St.  Tr.  212),  as  of  the  sur- 
render and  capitulation  of  an  island 
(Picton's  Case)  ante,  or  indeed  of  any 
matter  which  is  peculiarly  within  the 
knowledge  of  the   government.     Thus 
the   date   of   the    declaration    of   war 
may  be  proved  by  the  declaration  of 
the   ambassador   transmitted   by    him 
to  the  Secretary  of  State  and  printed 
by  the  authority  of  the  governmenr, 
Thelluson  v.  Colling,  4  Esp.  266.     But 
the    fact     that     a     ratification    of    a 
blockade   of   a   certain   port   has  been 
printed   by   authority   does   not   raise 
a  presumption  that  a  certain  person 
knew  of  the  blockade,  but  such  knowl- 
edge must  be  proved  as  a  fact.     Har- 
ratt  V.  Wise,  9  B.  &  C.  712.     In  Eng- 
land,  the   public   acts  of  the  govern- 
ment published   in   the  Gazette,  may 
be  proved  by  the  Gazette.    R.  v.  Holt, 
5  T.  R.  442;  Kirwan  v.  Cockburn,  5 
Esp.   283;    Graham   v.    Hope,    Peake, 
142 ;  Munn  v.  Baker,  2  Starkie,    255. 
But  in  this  country  we  have  no  offi- 
cial journals  of  the  government,  and 
public  acts  published   by  the  govern- 
ment printer  by  authority  occupy  the 
same    position    as    evidence    as    their 
publication    in    the   Gazette   does   in 


England.  Such  publications,  how- 
ever, are  not  evidence  of  private  titles 
or  interests  or  of  any  matter  which 
has  no  reference  to  government  con- 
cerns. R.  V.  Holt,  ante;  Kirman  v. 
Cockburn,  2  Esp.  233. 

The  statute  law  of  another  State 
or  country  must  be  produced,  but 
the  common  or  unwritten  law  may  be 
proved  by  parol,  Robertson  v.  Staed^ 
135  Mo.  135,  36  S.  W.  610,  58  Am.  St. 
Rep.  569;  Robinson  v.  Clifford,  2 
Wash.  (U.  S.  C.  C.)  1;  United  States 
V.  Ortega,  4  id.  53.  Otherwise 
they  will  be  presumed  to  be  the  same 
as  those  of  the  former.  Davis  v.  Rog- 
ers, 14  Ind.  424;  Hemphill  v.  Bank, 
14  Miss.  44.  Foreign  laws  and  regu- 
lations, unless  shown  to  be  in  writ- 
ing, may  be  proved  by  parol,  es- 
pecially those  relating  to  such.  Liv- 
ingston V.  Marine  Ins.  Co.,  6  Cranch 
(U.  S.),  274:  Kennv  v.  Clarkson,  1 
Johns.  (X.  Y.)  385;*'McRae  v.  Matt- 
son,  13  Pick.  (Mass.)  53.  See  as  ta 
presumption  of  law  of  another  state, 
mite,  §  178. 

^  Hewitt  V.  Bank  of  Indian  Terri- 
tory,   (Xeb.,  1902),  92  X^  W.  741. 

^  So  Birdseye's  Revised  Statutes  of 
Xew  York  have  been  held  inadmissi- 
ble as  they  are  published  by  an  indi- 
vidual although  they  contain  a  certifi 
caie  of  the  secretary  of  state  ol 
their  correctness.  Goodwin  v.  Provi- 
dent    Savings     Life,     etc.,     Associa- 


Sec.  194.]  Public  Documents.  637 

State  ig  read  in  evidence  and  no  other  j^art  of  tlie  code  is  formally 
offered  in  evidence  the  court  is  still  not  confined  to  the'  particular 
sections  read,  but  may  look  into  the  volume  in  which  it  appears  for 
other  sections  bearing  upon  the  same  subject.^ 

Statutes  purj)orting  to  be  published  by  authority  of  a  State  are 
admissible  to  prove  what  the  statute  law  of  s'uch  State  is  upon  a 
given  matter/  and  the  burden  of  discrediting  them  is  upon  the 
party  against  whom  they  are  offered.^  Although  the  certificates  of 
the  proper  officers  of  the  legislature  and  the  approval  of  the  gover- 
nor are  conclusive  on  the  court  as  to  the  passage  of  a  statute,  still 
the  court  may  examine  the  journals'  of  the  houses  of  the  legisla- 
ture to  ascertain  whether  the  constitutional  requirements  as  to  its 
passage  have  been  observ^ed.'^  Where  a  speeial  statute  of  another 
State  is  produced  by  a  copy  duly  authenticated  it  is  sufficient  to 
prove  the  law  of  the  State  without  proof  of  constitutional  author- 
ity in  the  legislature  to  pas's  such  an  act  even  though  the  law  of 
the  State  of  the  forum  prohibited  the  passing  of  such  acts.^  Printed 
statutes,  purporting  to  be  printed  by  authority  of  a  State  or  coun- 
try, are,  however,  only  prima  facie  proof,  and  may  be  discredited 
by  a  copy  of  the  statute  duly  certified  by  the  secretary  of  State, 
under  the  seal  of  the  State ;  and  in  some  of  the  States  an  exempli- 
fied copy  of  the  statute  must  be  produced.^     Ill  other  States',  even 

tion,  97  Iowa,  226,  66  N.  W.  Toulandon  v.  Lachenmeyer,  6  Abb.  Pr. 
157,  59  Am.  St.  Rep.  411.  In  (N.  Y.)  N.  S.  215;  State  v.  State,  1 
Alabama  the  'statutes  of  another  D.  Chip.  (Vt.)  303;  Mullen  v.  Mor- 
State  may  be  proved  by  the  intro-  ris,  2  Penn.  St.  85 ;  Cox  v.  Robins,  2 
duction  of  a  book  purporting  to  be  S.  &  P.  (Ala.)  91;  Barkman  v.  Hop- 
published  by  authority  of  the  legis-  kins,  11  Ark.  157;  Campanet  \.  Jer- 
lature  of  that  state,  although  pub-  negan,  5  Blackf.  (Ind.)  375;  Vaughan 
lished  by  a  private  person.  Falls  v.  v.  Griffiths,  16  Ind.  353;  Thomas  v. 
United  States,  etc.,  Co.,  97  Ala.  417,  Davis,  7  B.  Mon.  (Ky.)  227:  Owen  v. 
13  So.  25,  38  Am.  St.  Rep.  194,  Bagle,  15  Me.  147;  Merrifield  v.  Rob- 
Alabama  statute  said  must  be  pub-  bins,  8  Gray  (Mass.),  150;  Braughan 
lished  by  authority  of  the  legislature.  v.  Graham,  2  Miss.  220;  Stewart  v. 
In  New  Hampshire  the  rule  is  that  Swanzy,  23  Miss.  502;  Lord  v.  Sta- 
a  foreign  statute  may  be  proved  by  pies,  23  N.  H.  448;  Kean  v.  Rice.  12 
oral  evidence  of  one  who  had  exam-  S.  &  R.  (Penn.)  203;  Allen  v.  Wat- 
ined  the  foreign  laws,  or  by  producing  son,  2  Hill  (S.  C),  319;  Martin  v. 
either  what  purports  to  be  an  offi-  Payne,  11  Tex.  292;  Ellis  v.  Wiley, 
cial  copy  or  a  copy  prepared  by  an  17  Tex.  134;  State  v.  Abbey,  29  v^t. 
ordinary  scrivener.     Hall  v.  Costello,  60. 

48  N.  H.  176;   Nashua  Savings  Bank  "Emery  v.   Bean,   26   N.  H.    152. 

V.  Anglo-American  Co.,  189  U.  S.  221,  "Town  of  Wilson  v.  Markley,    (N. 

23    S.    Ct.   517.     To   same   effect   see  C),  45  S.  E.   1023. 
Barrows  v.  Downs,  9  R.  I.  446.  '  Fidelity  Insurance  Trust  and  Safe 

'Spears,  Ex  parte,  88  Cal    640,  22  Deposit  Co.  v.  Nelson,  30  Wash.  340, 

Am.  St.  Rep.  341,  26  P.  608.  71  Pac.  961. 

*  Bright    v.    White,     8    Mo.    421;  « Packard  v.  Hill,  2  Wend.  (  N.  Y.) 


638  Evidence.  [Cliap.  20 

Ike  printed  statutes  of  a  foreign  countiy  may  be  used  in  evidence 
if  a  witness  is  produced  who  swears  that  he  received  them  from  the 
king's  printer,^  or  where  it  is  shown  that  they  have  been  sanctioned 
by  the  executive  and  judicial  officers  of  such  country."  But  gen- 
erally, in  all  of  the  States,  a  copy  of  the  statutes  of  a  State  pur- 
porting to  be  printed  "  by  authority  "  of  the  State  are  received  as 
evidence,  and  if  they  are  inaccurate  the  other  party  must  show  it. 

Where  a  foreign  statute  is  offered  in  evidence  the  testimony  of 
an  expert  as  to  its  accepted  and  proper  construction  in  the  foreign 
country,  is  admissible  upon  any  matter  open  to  reasonable  doubt." 

A  statute  and  the  preamble  is  only  conclusive  as  to  the  law  and 
if  any  facts  are  recitqd  therein,  as  if  the  preamble  states  "  whereas, 
the  inhabitants  of  Windsor  county  are  now  in  a  state  of  insur- 
rection, etc.,"  the  statute  is  not  conclusive  as  to  the  fact,  and  evi- 
dence is  admissible  to  show  that  no  such  condition  existed;  and 
the  same  rule  prevails  as  to  any  recital  of  facts,^^  and  as  to  any 
statute,  whether  foreign  or  domestic. 

The  facts  recited  in  the  preamble  of  a  private  statute  may  be 
evidence  between  the  State  and  the  applicant  or  party  for  whose 
benefit  the  act  passed.  But  as  between  the  applicant  and  another 
individual,  whose  rights  are  affected,  the  facts  recited  ought  not 
to  be  evidenced.^^    ISTor  will  an  act,  private  in  its  nature,  be  admis- 

411.     But  under  the  law  of  1868  the  tained    Avhat    construction    has    been 

authorized  printed  statutes  of  another  placed  upon  the  statute  by  the  courts 

State  may  now  be  used.     Persee,  etc.,  of  that   state  and   in  the   absence   of 

Paper  Works  v.  Willett,  19  Abb.  Pr.  such    construction    the    court    of    the 

(N.  Y.)   N.  S.  21.5;  State  v.  Jackson,  forum  should  construe  the  statute  ac- 

2    E)ev.    L.    (X.   C.)    563;    Wilson   v.  cording   to   the   same    rules   that   aro 

Leuzier,   11   Gratt.    (Va.)    477.  applicable   in   the     construction   of   a 

^  Jones  V.  Maffit,  5  S.  &  R.   { Penn. )  domestic    statute.      Clark   v.   Etlingo, 

523.  (Wash.,   1905),  80  Pac.  556. 

'•Owen  V.  Bagle,  15  Me.  147.  "  R.  v.  Greene,  6  Ad.  &  El.  548. 

"  Slater  v.  Mexican  Natl.  R.  R.  Co.,  "  Elmendorf  v.  Carmichael,  3  Litt. 

194  U.  S.  120,  24  S.  Ct.  581.    But  see  (Ky.)   472,  480. 

Hancock    Natl.     Bank   v.    Ellis,     172  In  the  case  last  cited,  the  court,  in 

Mass.   39,  51   N.  E.  207,  70   Am.   St.  their   opinion   in    this    case,   observe: 

Rep.  232.    In  Washington  it  has  been  "  We   well    know   that    such   applica- 

held   that  evidence  as  to  the  statute  tions   are   frequently  made   ex  parte, 

of  another  state  by   testimony  of  an  and   if  they  are  not  entirely  so,   but 

attorney  of  many  years'  experience  in  the  party  affected  appears  and  resists 

that  state  to  a  consensus  of  the  opin-  the    statute,    it    is   very   questionable 

ion  of  the  bench  and  bar  of  that  State  whether  the  facts  recited  ought  to  be 

as  to  the  meaning   of  a   certain  sec-  evidence   in    a   future    contest.       The 

tion   is   too   indefinite  and   uncertain.  legislature,  in  all  its  inquiring  forms 

The  court  says  that  where  the  text  of  by  committees,  make  no  issue,  and  in 

a  statute  of  a   sister  State  is   before  their  discretion  may  or  may  not  co- 

the    court    it    should    be    first    ascer-  erce  the   attendance   of   witnesses  or 


Sec.  194.]  Public  Documents.  639' 

sible  in  evidence  as  against  strangers,  altliongh  it  contain  a  clause 
declaring  "  that  it  shall  be  deemed  and  taken  to  be  a  public  act, 
and  shall  b©  judicially  taken  notice  of  without  being  specially 
pleaded."  Such  a  clause  relates  merely  to  the  forms  of  pleading, 
and  does  not  vary  the  nature  and  operation  of  the  act.^^  In  a  New 
York  case,^"  the  court  held  that  a  statute  passed  to  confirm  cer- 
tain ofiicial  acts  of  a  justice  of  the  peace,  stating  that  he  became 
a  tavern  keeper  on  a  particular  day,  was  not  evidence  of  that  fact 
as  against  a  stranger.  The  legislature  has  no  jurisdiction  to  deter- 
mine facts  touching  the  rights  of  individuals.  So  of  various  other 
defenses,  founded  upon  statutes — as,  for  instance,  the  statute  of 
limitations,  which  the  defendant  cannot  avail  himsielf  of  under  the 
general  issue.^® 

Except  where  otherwise  provided  by  statute,  private  acts  of  the 
legislature,  as  charters  of  private  corporations,  etc.,  must  be 
proved,  which  may  be  done  either  by  a  copy  of  the  act  duly  certi- 
fied by  the  secretary  of  State,  or  in  most  of  the  States  by  the 
printed  statutes)  of  the  State  ;^^  but  of  all  public  statutes  of  the 
State  in  which  the  court  is  held,  or  which  are  declared  to  be  so  in 
the  act  itself,  the  court  will  take  judicial  notice,  and  no  proof  in 
reference  thereto  is  required,  and  in  some  of  the  States  it  is  pro- 
vided by  statute  that  all  private  acts  printed  in  the  public  statutes 
or  by  authority  of  the  State  shall  be  received  as  evidence  thereof.^* 

the  production  of  records,  and  ai'e  was  intended;  that  is,  an  apology  for 
frequently  not  bound  by  the  rules  of  the  passage  of  the  act,  and  the  rea- 
evidence  applicable  to  an  issue  prop-  son  why  the  legislature  so  acted, 
erly  formed,  the  trial  of  which  is  an  Such  a  preamble  is  evidence  that  tne 
exercise  of  judicial  power.  Once  facts  were  so  represented  to  the  leg- 
adopt  the  principle  that  such  facts  islature,  and  not  that  they  really 
are   conclusive    or    even    prima    facie  existed." 

evidence   against   private   rights,   and  "Brett  v.  Beales,   1  M.  &  M.   421, 

many  individual  controversies  may  be  425. 

prejudged  and  drawn  from  the  func-  "  Parmelee    v.     Thompson,    7    Hill 

tions  of  the  judiciary  into  the  vortex  (X.  Y. ),  77. 

of   legislative    usurpation.        The   ap-  "Levi  v.  Gadsbury,   3   Cranch    (U. 

propriate  functions  of  the  legislature  S.  C.  C),  180. 

are  to  make  laws  to  operate  on  future  "Bank  v.  Wallaston,  3  How. (Del.) 

incidents,  and  not  the  decision  of  or  90;  Leland  v.  Wilkinson^  6  Pet.    (U. 

forestalling  rights  accrued   or   vested  S. )    317;    Baring  v.  Harmon,   13  Me., 

under  previous  laws.     Hence   such  a  361. 

preamble    as    the    present    ought,    in  ^*  Baring  v.   Harmon,    13   Me.   361 ;. 

such     a    controversy,     to     be     taken  Walker  v.  Armstrong,  2  Kan.  198. 
to  answer  the  purpose   for  which  it 


64:0  EviD.EJv'CE.  [Chap.  20 

Sec.  195.  Common  Law  of  Another  State  or  Country. 

What  the  laws  of  foreign  countries  are,  when  made  an  issue  in  a 
case,  must  be  proved  as  other  facts.  If  they  are  ^vi-itten,  the  laws 
themselves,  or  authenticated  copies,  must  be  produced ;  if  they  are 
not  written,  then  they  may  be  proved  by  the  evidence  of  witnesses 
w^ho  are  competent  to  testify  on  the  question.^  Where  the  evidence 
of  the  law  of  another  State  cons'ists  entirely  of  statutes  or  reports 
of  judicial  decisions  the  constructions  and  effects  of  the  statutes 
and  decisions  are  usually  for  the  court  alone.  Where  the  decisions 
are  conflicting  and  where  inferences  of  fact  must  be  drawn,  the 
question  of  what  the  law^  is  becomes  one  of  fact.^  The  unwritten 
law  of  another  State  or  country,  when  required  to  be  proved  as  a 
fact  in  a  case,  cannot  generally  be  proved  by  the  printed  reports 
of  the  decisions  of  its  courts,  but  must  be  proved  by  witnesses 
learned  in  the  law  of  the  State.^  But  in  some  of  the  States  by 
statute,*  such  reports  are  made  admissible.  In  the  appellate  courts, 
such  reports  are  always  accepted  as  evidence  of  what  the  courts  of 
another  State  have  held  upon  certain  questions.  A  law  dictionary 
may  be  admitted  in  evidence  to  prove  foreign  law  on  proof  that 
it  is  accepted  authority.^ 

Although  it  is  the  general  rule  that  the  laws  of  another  State 
must  be  pleaded  and  proved  like  any  other  fact,  this  does  not 
require  such  laws  to  be  pleaded  when  they  consist  of  mere  matters 
of  evidence  so  under  a  general  plea  of  payment  evidence  of  the  law 
of  another  State  as  to  the  effect  of  the  giving  of  a  note  may  be 
admitted.*' 

Sec.  196.  Records  of  Births,  Marriages  and  Deaths. 

Registers  kept  by  officials  who  are  required  by  law  to  register 
particular  transactions  occurring  in  their  presence,  or  who  make 
such  memoranda  as  are  incident  to  the  course  of  public  business 
transacted  by  them,  are  sometimes  admissible  in  evidence  to  est'ab- 

^  Robertson  v.   Staed,   135   Mo.   135,  361;      Penobscot,    &c.,    R.    R.    Co.    v. 

36  S.  W.  610,  58  Am.  St.  Rep.  569.  Bartlett.  12  Gray   (Mass.),  244. 

*  Hancock    National    Bank    v.    El-  °  Banco  de  Sonora  v.  Bankers'  Mut. 

lis,   172   Mass.   39,   51   K   E.   207,   70  Casualty    Co.     (Iowa,    1904),    100    N. 

Am.  St.  Rep.  232.  W.    532.     s.    c.     124     Iowa,     576,    95 

"Gardner   v.   Lewis,   7   Gill    (Md.),  N.  W.  232. 

377.  "  Thomson-Houston   Electric    Co.    v. 

*Lockwood   V.   Crawford,    18    Conn.  Palmer,  52  Minn.  174,  53  N.  W.  1137, 

38  Am.  St.  Rep.  536. 


Sec.  196.]  Public  Documejstts.  641 

lish  facts  stated  therein,  although  no  statutory  provisiion  that  such 
registers  shall  be  evidence  of  the  facts  contained  therein  exists, 
credibility  being  given  thereto  because  they  are  made  under  the 
sanction  of  an  official  oath  or  under  the  duty  and  responsibility 
attaching  to  their  official  position.  To  entitle  a  book  to  the  char- 
acter of  an  official  register  it  is  not  always  necessary  that  it  should 
be  required  to  be  kept  by  an  express  statute,  nor  even  that  the 
nature  of  the  office  should  render  the  book  indispensable.  It  is 
sufficient  if  it  is  directed  to  be  kept  by  the  proper  officer.^  Thus, 
in  the  case  last  cited  the  book  of  accounts  kept  by  the  alcalde  was 
lield  admissible  as  a  register  of  the  acts  of  that  officer  and  belong- 
ing to  the  office.  So  parish  and  parochial  registers  are  'evidence 
that  the  facts  contained  therein,  which  are  hy  law  required  to  he 
recorded,  occurred  on  the  day  named  therein,  as  that  a  marriage 
between  certain  parties  occurred  at  the  time  stated  in  such  regis- 
ter.^ So  the  records  of  births  and  deaths  kept  by  a  religious  soci- 
ety, when  proved,  are  evidence  of  the  time  of  the  birth  of  a  child 
or  the  death  of  a  person.^  Baptismal  records  of  the  Roman  Catho- 
lic church  kept  in  Ireland,  where  they  are  admissible  as  evidence 
of  pedigree,  are  also  admissible  in  this  country,^  but  an  entry  in 
a  church  record  not  kept  because  required  by  law  to  be  kept,  is  not 
admissible  without  proof  of  the  hand-svriting  of  the  writer  when  he 
is  deceased.^  But  when  the  original  is  not  of  a  public  nature  a 
sworn  copy  must  be  produced.  So  hospital  records  not  kept 
under  any  requirement  of  law,  are  not  public  records  and  so.  not 
admissible  unless  supported  by  the  testimony  of  the  one  who  made 
them,  if  that  person  is  still  alive  and  within  reach.''  But  in  New 
Jersey  it  is  held  that  a  certified,  sworn,  or  examined  copy  from 
the  parish  register  of  the  Catholic  church,  kept  under  the  rules 
and  requirements  of  that  church,  is  admissible  when  coming  from 
proper  custody.'^     In  New  York  a  record  of  the  cause  of  death 

*Kyburg  v.  Perkins,  6  Cal.  674.  "Murphy  v.  People,  213  111    154    72 

="  Wollaston  v.   Barnes,    1   M.   &   M.  N.  E.  779. 

386;      Miner   v.   Boucham,    15   Johns.  « Cashin  v.   New  York,  N.  H    &  H 

(N.    Y.)    226;   Milford   v.   Worcester,  R.    Co.,   185   Mass.   543,   70   N.   E    K, 

7  Mass.  48.  930. 

^  Stoever    v.    Whitman's    Lessee,   6  '  Hancock  v.  Supreme  Council  Cath- 

Binn.   (Penn.)   416.  olic  Benev.  Legion,  69  N.  J.   308,  52 

*  Collins  V.  German  American  Mu-  A.  301. 
tual     Life     Association      (Mo.     App., 
1905),  86  S.  W.  891. 

41 


642  Evidence.  [Chap.  20 

kept  by  the  board  of  health  as  required  by  law,  is  not  admissiblo 
in  a  suit  between  private  parties,  although  the  statute  provides 
that  such  records  shall  be  prima  facie  evidence  of  the  facts  therein 
set  forth,  as  they  are  kept  under  what  are  in  effect  police  regula- 
tions for  local  purposes  and  are  not  public  records.^  Even  certified 
copies  of  public  records  of  the  registrar  of  births,  deaths  and  mar- 
riages are  usually  admissible.^  A  register  book  of  baptisms  is 
not  evidence  unless  it  was  made  at  the  time  of  the  fact,  or  so  near, 
thereto  as  to  preclude  all  idea  of  collusion  or  misrecollections,  an3 
by  the  minister  or  his  clerk  who  witnessed  the  ceremony.^'*  jSTor 
generally  are  such  registers  evidence  of  any  fact  not  required  to 
be  recorded  in  them,  or  which  was  not  witnessed  by  the  person 
making  the  entry."  Thus,  an  entry  in  a  baptismal  register  is  evi- 
dence of  the  date  of  baptism,  but  it  is  not  evidence  of  the  date  of 
birth,  even  though  it  is  stated  therein.^^  But  snch  a  register,  used 
for  the  purpose  of  proving  the  place  of  baptism,  may  also  form  a 
part  of  a  chain  of  evidence  to  prove  the  birth  of  the  person  bap- 
tized within  a  certain  parish,  as  where  it  is  shown  by  evidence 
dehors  the  register  that  the  child  was  very  young  when  baptized^ 
although  the  register  is  silent  upon  that  point.^^  And  in  all  cases 
evidence  dehors  the  register  is  necessary  to  identify  the  parties,^* 
In  an  English  case,^^  in  an  issue  out  of  chancery  as  to 
whether  a  certain  person  was  a  legitimate  child,  a  baptismal  regis- 
ter, in  which  such  person  was  described  as  "  illegitimate,"  was 
admitted  by  Aldekson^  B.,  as  affording  some  evidence  of  the  fact. 
An  entrance  in  a  register  which  does  not  purport  to  be  of  a  fact  of 
which  the  person  making  it  had  knowledge,  is  not  admissible  as 
an  entry  of  baptism  in  which  the  party  is  "  said  to  be  bom  in 

A  bishop's  register  is,  in  England,  evidence  of  facts  stated  in 

*Beglin   v.   Metropolitan    Life   Ins,  Duins  v.  Donovan,  3  Hagg.  Ecc.  301; 

Co.,  173  N.  Y.  374,  66  N.  E.  R.  102;  Burghart   v.   Angenstine,    6    C.    &   P. 

Buffalo  Loan,  etc.,  Co.  v.  K.  T.  &  M.  690;    R.   v.   North  Petherton,   5   B.   & 

M.  Aid  Association,  126  N.  Y.  450.  27  C.  508 ;   R.  v.  Clapham,  4  C.  &  P.  29. 

X.  E.  942,  22  Am.  St.  Rep.  839.  '"  R.  v.  North  Petherton,  5  B.  &  C. 

"  Murray  v.   Supreme  Lodge  N.  E.  508. 

Order  of  Protection,  74  Conn.  715,  52  "  Birt   v.   Barlow,   ante;     Draycott 

A.  722;   McKinstry  v.  Collins,  74  Vt.  v.  Draycott,  12  Vin.  Abr.  89. 

147.  52  A.  438.  "  Cope  v.  Cope,  1  M.  &  R.  269. 

'"Warren  v.  Bray,  S  B.  &  C.  813.  "Duins  v.  Donovan,  3   Hagg.   Ecc. 

"  Birt  V.  Barlow,  Dang.  170.  301. 

"Wihen     v.     Law,     3     Stark.    03; 


Sec.  19 O.J  Public  Documents.  643 

it."  But  a  register  of  burials  kept  by  the  Wesleyan  Chapel  has 
been  there  repudiated  as  incompetent.^^  A  register  of  the  births 
of  dissenter's  children,  kept  at  a  public  library,  is  not  evidence.'^ 
■  A  sworn  copy,  from  the  register  book,  of  the  burials  in  Christ 
Church,  Philadelphia,  has  been  received  in  evidence  to  show  the 
fact  of  the  death  of  a  person  and  the  time.^"* 

In  Louisiana,  the  register  of  baptisms  and  births  is  evidence, 
and  it  seems,  when  shown  to  exist,  precludes  parol  testimony.^^ 
An  alteration  in  such  baptismal  register,  by  erasing  the  word 
"  natural,"  and  writing  over  it  the  word  "  legitimate,"  has  no 
effect  in  preventing  the  registry  from  being  used  t^  establish  the 
period  of  birth,  though  the  alteration  be  not  accounted  for.  Other- 
wise, however,  if  the  document  were  offered  to  establish  the  legiti- 
macy of  the  person  named.^^  A  register  of  burials  is  also  evidence 
there ;  and  where  a  register  of  baptisms  proved  that  a  child  was 
christened  by  the  name  of  "  Francisco  Antonio,"  and  a  register 
of  burials  attested  the  interment  of  a  person  named  "  Francisco," 
and  no  question  was  raised  in  the  inferior  court  on  the  point  of 
variance,  held,  that  on  appeal  the  appellate  court  must  consider 
the  one  whose  death  was  attempted  to  be  proved  to  be  the  person 
whose  death,  according  to  the  pleadings,  it  was  important  to 
establish.^^ 

In  Pennsylvania,  a  copy  of  the  register  of  marriages,  baptisms 
and  burials,  kept  in  a  parish  in  the  island  of  Barbadoes,  certified 
to  be  a  true  copy  by  the  rector  of  the  parish,  and  proved  by  the  oath 
of  a  witness,  taken  before  the  deputy  secretary  of  the  island  and 
notary  public  (his  handwriting  and  office  being  proved),  has  been 
received  as  good  evidence  of  pedigree.^*  And  a  copy  of  a  register 
of  birth  and  deaths  of  the  people  called  Quakers,  kept  in  England, 
proved  to  be  a  true  one  before  the  lord  mayor  of  London,  has  also 
been  allowed  as  evidence  in  Pennsylvania  to  prove  the  death  of  a 
person.^^  By  a  statute  in  that  State,  the  register  kept  by  any  relig- 
ious society  of  births,  marriages  and  deaths  is  declared  good  evi- 

"  Arnold  v    The  Bishop  of  Bath,  5  242;      Fletcher   v.   Cavalier,    4   Mill. 

Bing.  316;   2  M.  &  P.  559.  (La.)   267. 

^nVhittuck   V.   Waters,  4   C.   &  P.  ='  Fletcher  v.  Cavalier,  supra. 

375  -^  Cells  V.  Oriel,  6  La.  403. 

'»"Ex  parte  Taylor,  1  J.  &  W.  463.  =Mvingston   v.   Lesley,    10    S.   &   R. 

^o  Lewis  V.  Marshall,  5  Pet.   (U.  S.)  .  (Penn.)    383.        ^^      •            ,      ^  ,, 

470   475,  476.  "  Hyam     v.      Edwards,      1      Ball. 

"Dupiessis  V.  Kennedy,  6  La.  231,  (Penn.)  2. 


C44 


Evidence.  [Chap.  20 


dence.  The  act  is  silent  as  to  the  mode  of  proof,  and  therefore  the 
common-law  mode,  which  is  by  a  sworn  copy,  or  the  production  of 
the  original  must  be  resorted  to.  A  certified  copy,  under  the  seal 
of  the  corporation  or  religious  society,  is  not  admissible.^® 

In  Maine,  a  book  was  produced  by  a  town  clerk,  which  had  been 
received  by  him  from  his  predecessor  in  office  as  an  official  record ; 
it  purported  to  contain  a  record  of  birthsi  and  marriages  in  such 
town,  but  contained  no  title  or  attestation  of  its  character,  nor  any 
certificate  showing  by  whom  the  entries  in  it  were  made ;  and  held, 
that  it  was  proper  prima  facie  evidence  to  prove  the  age  of  a  per- 
son named  in  it.^''  A  cojDy  from  the  records  of  the  town  is  there 
admissible.^^ 

In  New  York,  sworn  copies  of  such  registers,  when  the  original 
ig  of  a  public  nature,  have  been  held  admissible.^* 

In  ISTorth  Carolina,  a  registry  of  births,  marriages  and  burials, 
kept  pursuant  to  the  statute,  is  legal  evidence  of  marriages,  births, 
etc.,  especially  on  questions  of  pedigree ;  and  the  court  lay  it  down 
as  a  general  rule  that  a  book  kept  by  public  authority  is  necessarily 
evidence  of  the  facts  recorded  in  it.^*^ 

In  a  'New  York  case,^^  a  sworn  copy  of  the  records  of  the  town 
of  Stonington,  Connecticut,  was  held  admissible  in  New  York,  on 
a  question  of  pedigree.  In  Ohio,  where  the  defendant,  on  a  trial 
in  ejectment,  ofi'ered  the  deposition  of  the  town  clerk  of  New  Mil- 
ford,  Connecticut,  to  prove  the  correctness  of  a  copy  of  the  records 
of  that  town,  showing  the  time  of  the  defendant's  birth,  the  court 
held  that  it  must  be  further  shown  that  the  record  copied  was  kept 
under  the  authority  of  law;  that  a  sworn  copy  of  a  private  paper 
is  nothing  without  proof  of  the  original  being  executed,  and  until 
it  was  proven  that  the  paper  copied  by  the  clerk  in  this  case  as  a 
record  was  legally  entitled  to  that  character  it  was  inadmissible.^^ 

A  marriage  certificate,  where  it  is  necessary  to  show  that  the 
priest  who  performed  the  ceremony  signed  the  certificate,  may  be 
proved  by  evidence  that  the  certificate  was  given  to  the  husband 

^  Stoever     v.     Whitman,    G     Binn.  237 ;     Miner  v.  Boneham,   15  Johns. 

(Penn.)   416.  (N.  Y.)   226. 

*^  Summer  v.  Sebec,  3  Me.  223.    See  '°  Jaycock  v.  Gilliam.  3  Murph,  (N. 

Martin  v.   Gunby,   2   H.   &  J.    (Me.)  C.)  47,  52. 

248.  *'  Miner  v.  Boneham,  ante. 

"  Wedgwood's  Case,  8  Me.  75.  *-  Richmond   v.   Patterson,   3    Ham. 

»»Bogert  V.  King,  5  Cow.    (N.  Y.)  (Ohio)    368. 


Sec.  197.]  Public  Documents.  645 

immediately  after  the  ceremony  by  the  priest.^^  An  original  mar- 
riage license  may  be  put  in  evidence  by  the  recorder  of  the  county 
who  held  office  at  the  time  when  the  paper  was  issued  by  the  deputy 
recorder  although  the  witness  no  longer  has  any  official  position, 
and  cannot  explain  how  he  came  by  the  paper. ^* 

Sec.  197.  Ship  Registers. 

The  effect  of  the  registers  of  ships  is  of  a  different  nature  from 
that  of  parish  registers.  To  give  them  the  effect  of  proving  the 
facts  stated  in  them,  would  enable  parties  to  make  evidence  for 
themselves ;  the  entry  not  being  of  any  transaction  of  which  the 
public  officer  who  makes  the  entry  is  conusant.  The  entry,  there- 
fore, or  the  absence  of  it,  is  a  fact  to  be  proved,  and  does  not  fur- 
nisih  evidence  of  any  other  fact.  Thus,  the  register  or  certificate 
is  not  prima  facie  evidence  of  title  in  favor  of  the  owner  ;^  nor 
against  him,  unless  proved  to  have  been  made  with  his  consent,  or 
to  have  been  recognized  by  him.^  But  the  register  and  certificate 
of  register  are  conclusive  evidence  of  want  of  title  against  those 
who  are  not  named  in  the  register.^  A  British  regisiter  describing 
a  vessel  to  be  British  built  is  not  evidence  of  that  fact.*  The 
States  severally  have  no  right  to  require  the  owners  of  steamers 
navigating  their  internal  waters  to  file  at  a  seaport  the  name  of  the 
boat  and  owners,  their  residences'  and  respective  interests,  under 
oath,  under  penalty  of  a  forfeiture.^  The  same  principle  applies 
to  steam  lighters  and  tow-boats  employed  in  the  lower  and  inner 
bay  of  Mobile.^  But  a  statute  of  the  State  requiring  the  mort- 
gage of  a  vessel  to  be  acknowledged  and  recorded  in  a  particular 
manner  is  valid,  so  that  a  failure  to  record  the  mortgage  renders 
it  void  as  against  creditors.^     The  register  is  not  a  document  re- 

'' Fratini    v.    Caslini,    66    Vermont,  *  Camden  v.  Anderson,  5  T.  R.  709; 

273,  29  A.  252,  44  Am.  St.  Rep.  843.  explained    in   Tinkler   v.   Walpole,    14 

""  State  V.  Pendleton,  67  Kan.   180,  East,  226 ;   Marsh  v.  Robinson,  4  Esp. 

72  Pac.  527.  98.     And  see  Teed  v.  Martin,  4  Camp. 

'Flower   v.   Young,    3    Camp.   241;  90;   Robertson  v.  French,  4  East,  136; 

Pirie  v.  Anderson,  4  Taunt.  652.  Hubbard  v.  Johnstone,  3  Taunt.  177; 

=  Tinkler  v.  Walpole,   14  East,  226.  Thomas  v.  Foyle,  5  Esp.  88. 

See,  also,  Fraser  v.  Hopkins,  2  Taunt.  *  Reusse  v.  Myers,  9  Camp.  475. 

5;   Cooper  v.  South,   4  id.  802;   Curl-  ^  Sinnot  v.  Davenport.  22  How.   (U. 

ing    V.    Robertson,    7    M.    &    G.    336;  S.)   227. 

Young  V.   Brander.   8  East,    10;   Jen-  *  Foster  v.  Davenport,  Z2  How.    (U. 

nings  V.  Griffiths,  Ry.  &  M.  42;   Cox  S.)   244. 

V.  Reid,   id.    199;  M'lver  v.  Humble,  ^  Aetna  Ins.  Co.  v.  Aldrich,  26  N. 

16  East,  169.  Y.  92. 


646  Evidence.  [Chap.  20 

quired  by  the  law  of  nations  as  expressive  of  a  ship's  national  char- 
acter/ but  is  of  local  or  municipal  regulation  and  the  object  of  it 
has  been  said  to  be  to  show  the  character  of  the  vessel,  and  entitle 
her  to  the  advantages  secured  by  law  to  the  vessels  of  our  own  coun- 
try.^ Transfers  of  ships,  it  seems,  in  England,  are  declared  void 
unless  certain  formalities  prescribed  by  the  registry  acts  are  pur- 
sued. But  there  is  no  corresponding  provision  in  the  act  of  con- 
gress.^*' The  effect  and  competency  of  the  register  of  a  vessel  as 
evidence  has  been  considered  in  several  cases  in  the  courts  of  this 
country.  Our  laws  recognize  the  possibility  of  the  register's  exist- 
ing in  one  name  while  the  ownership  is  in  another.  The  owner- 
ship and  character  of  a  vessel  are  matters  in  pais.  The  register  is 
not  an  exclusive  test  of  either.  Hence  on  an  indictment  for  piracy,^ 
the  character  of  the  vessel  plundered  may  be  shown  without  any 
effort  to  produce  her  certificate  of  registry. ^^  In  an  action  to  re- 
cover back  a  premium  of  insurance  on  the  ground  that  the  plain- 
tiff had  no  interest  in  the  vessel  at  the  time  of  insurance,  the  regis- 
ter, which  was  in  the  name  of  other  persons,  was  held  not  even 
prima  facie  evidence  to  prove  that  the  plaintiff  was  not  o^vner.^^ 
So  where  a  person  purchased  a  vessel,  and  took  immediate  posses- 
sion, but  it  was  agreed  that  no  bill  of  sale  was  to  be  executed  till 
the  purchase-money  was  all  paid,  held  that  the  vendor  was  not 
liable  for  repairs  made  to  the  vessel  by  direction  of  the  master  on 
the  credit  of  the  purchaser,  and  this  though  the  register  still 
stood  in  the  name  of  the  vendor.  That  circumstance,  the  court 
say,  did  not  in  any  manner  determine  the  ownership.^^  And  so, 
in  Massachusetts,  where  the  register  was  relied  on  by  underwriters 
in  an  action  on  a  policy  of  insurance  for  the  purpose  of  showing 
that  two  of  the  insured  had  no  legal  or  insurable  interest  in  the 
vessel.^*  In  Connecticut,  however,  though  the  register  of  a  vessel 
is  not  conclusive  of  ownership,  yet  where  a  person  by  such  a  regis- 
ter made  on  his  own  oath  appears  to  be  the  unconditional  owner ; 

"Cheminant   v.    Pearson,    4   Taunt.  "United     States     v.     Furlong,     5 

367.  Wheat.    (U.  S.)    184,   199. 

"Sharp     V.     United     Ins.     Co..     14  "Sharp     v.     United     Ins.     Co.,     14 

Johns.   (N.  Y.)   204.  Johns.    (X.  Y.)    201. 

'"Colson  V.  Bonzev,  6  Me.  474,  477.  "Leonard  v.  Huntington,  15  Johns. 

See,  also,  Bixby  v.  Franklin  Ins.  Co.,  (X.  Y.)  298. 

8  Pick.    (Mass*)    86,  88,   89;   Birbeck  "Bixby    v.    Franklin    Ins.    Co.,    3 

V.  Tucker.  2  Hall    (X.  Y.),  121;   Ring  Pick.  (Mass.)   86. 
V.    Franklin,   2   id.    1 ;      Wendover    v. 
Ilugcboom.  7  Johns.    (N.  Y.)    308. 


Sec.  197.]  Public  Documents.  647 

held,  by  four  judges  against  three,  that  it  must  be  considered  as  a 
declaration  to  the  world  that  he  is  owner,  and  be  becomes  liable, 
of  course,  for  necessary  disbursements  in  repairs  and  supplies  pro- 
cured by  the  master  during  the  voyage.^^  The  register  cannot  be 
rendered  evidence  of  ownership  in  favor  of  the  person  who  pro- 
cured it  to  be  made,  though  it  may  be  against  him.^®  In  an  action 
against  owners  of  a  vessel  for  a  violation  of  a  contract  made  by 
the  plaintiffs  for  the  transportation  and  delivery  of  goods'  with  the 
master,  a  copy  of  the  register,  which  purported  to  have  been  made 
on  the  oath  of  all  the  defendants  that  they  were  the  owners,  was 
held  good  evidence  of  their  being  such,  and  this  on  proof  merely 
that  the  copy  was  a  copy  of  the  record  in  the  custom-house,  though, 
the  witness  could  not  say  whether  the  record  was  the  original  or  a 
copy.^^  It  is  prima  facie  evidence  in  these  and  similar  cases,  but 
is  not  conclusive. ^^  The  register  is  used  as  evidence  in  showing  a 
fulfillment  of  warranty  as  to  the  character  of  property  in  actions 
upon  policies  of  insurance.^^  And  in  such  cases  it  has  been  siaid 
that  proof  that  there  was  a  register  is  prima  facie  evidence  of  its 
being  on  board  during  the  voyage.^"  The  register  may  be  proved 
by  a  sworn  copy.^^  A  copy  certified  by  tlie  collector  in  whose  office 
it  is  recorded  is  not  evidence.  He  is  not  authorized  to  certify,  nor 
intrusted  to  give  out  copies.^^  A  copy  produced  from  the  treasury 
department  of  the  United  States,  where  the  original  is  required  to 
be  filed  after  a  vessel  is  condemned,  certified  by  the  register  of  the 
department,  whose  official  character  was  attested  by  the  secretary 
under  the  seal  of  the  department,  has  been  held  competent  evi- 
dence in  the  case  of  a  condemned  vessel.^^  It  seems  that  a  deputy 
collector's  certificate  of  enrollment  is  conclusive  of  the  facts  certi- 
fied.^*   The  commission  of  a  vessel  or  person  granted  by  a  foreign 

"Starr  v.  Knox,  2  Conn.  215.  Ins.  Co.,  14  Johns.   (N,  Y.)  308,  315; 

"Ligon    V.     Orleans    Nav.     Co.,    7  United  States  v.   Johns.   4   Dall.    ( U. 

Mart.    (La.)    682.  S.)    415;   Hacker  v.   Young,   6   N.   H. 

"  Hacker  v.  Young.  6  N.  H.  95.  95. 

"  Colson  V.  Eonzey,  6  Me.  474 ;  Cox  "  Coolidge    v.    New    York    Firemen 

T.  Reid,  1  C.  &  P.  602;   Hussey  v.  Al-  Ins.  Co.,  14  Johns.   (N.  Y.)   308.     See 

len    6  Mass.  163.  United  States  v.  Johns.,  4  Dall.    (U. 

"Catlett'  V.     Pacific     Ins.     Co.,     1  S.)  415;   Woods  v.  Courier,  1  id.  141. 

Wend.   (N.  Y.)   561.  *' Catlett    v.     Pacific     Ins.     Co.,     1 

=">  1  Wend.    (N.  Y.)    578.     See  Lud-  Wend.  (N.  Y.)   561. 

low    V.    Union    Ins.    Co.,     3  S.  &  E.  "Huictcley    v.     Briagman,   46    Me. 

(Penn.)    133.  45U. 

"  Coolidge    V.    New    York    Firemen  t 


648  Evidence.  [Chap.  20' 

government  may  be  proved  by  the  commission  itself  under  the  seal 
of  such  government.-^  The  seal,  in  general,  proves  itself,  but  other- 
wise as  to  the  seal  of  a  new  government  unacknowledged  by  the 
United  States.  The  fact  that  the  person  or  vessel  was  in  the 
employ  of  such  unacknowledged  government  may  be  shown  with- 
out proving  the  seal.'"  •  Where  the  commission  has  been  lost,  its 
previous  existence  on  board  may  be  shown  by  parol  evidence.^^ 
The  log-book  of  certain  vessels  is,  in  the  United  States,  made  evi- 
dence by  act  of  congress  of  the  fact  of  desertion  by  a  seaman.  It 
is,  however,  never  conclusive,  but  only  prima  facie  evidence,  and 
may  be  rebutted.^^  The  log-book,  in  general,  ought  not  to  be  ad- 
mitted to  establish  any  facts  save  such  as  are  contemplated  by  the 
act  of  congress.^^  It  is  in  no  sense,  per  se,  evidence,  except  in 
certain  cases  provided  by  statute.  It  does  not  import  legal  verity, 
and  in  every  other  case  is  mere  hearsay  not  under  oath.  It  may 
be  used  against  persons,  however,  to  whom  it  should  be  brought 
home  as  having  a  concern  in  writing  or  directing  what  should  be 
contained  therein,  to  contradict  their  statements  or  their  defense. 
But  it  cannot  be  received  as  evidence  for  such  persons,  or  others, 
except  by  force  of  a  statute  rendering  it  so.^''  On  an  indictment 
of  several  seamen  for  a  revolt  and  confining  the  master,  they  de- 
fended on  the  ground  (among  others)  that  the  master  was  insane. 
To  rebut  this,  the  prosecutor  offered  the  log-book,  kept  by  the  mas- 
ter during  the  period  of  his  alleged  derangement,  in  which,  as  he 
said,  he  made  entries  every  night ;  held,  that  it  was  inadmissible.^^ 
An  entry  in  the  log-book  is  indispensable  evidence  of  the  fact  of 
desertion,  when  a  forfeiture  of  wages  is  insisted  on;  it  is  neces- 
sary, in  order  to  show  that  no  consent  was  given,  and  no  release 
was  intended  by  receiving  the  delinquent  again  on  board,  as  well 
as  to  ascertain  the  fact  of  desertion  generally  with  greater 
accuracy. 

"The  Estrella,  4   Wheat.    (U.   S.)  Gilp.    (U.    S.   C.   C.)     147,    152,    153, 

298.  154;   Orne  v.  Townsend,  4  Mason,  541. 

"United     States     v.     Palmer,     .3  "Jones     v.     The     Brig     Phoenix. 

Wheat.  (U.  S.)  634,  635.  supra. 

"The  Estrella,   4   Wheat.    (U.    S.)  '"Per  Story,  J.,  in  United  States  v. 

2!)S;   Rundle    v.    Beaumont,    4    Biny;.  Gilbert.  2  feum.  (U.S.)  77,78. 

537.                                                            '  "United    States    v.    Sharp.    1    Pet. 

'Mones  v.  The  Brig  Phoenix,  1  Pet.  (U.  S.  C.  C.)    118,  119. 

Adm.  Dec.  201 ;  Malone  v.  The  Mary,  ^-  Malone   v.    The   Mary,    1    Peters* 

id.  140;  Thompson  v.  The  Ship  Phila-  Adm.  Decis.   140;   Phoebe  v.  Dignum, 

delphia,  id.  210;  Douglas  v.  Eyre,   1  1    Wa=h.   C.   C.   Rep.   48;   Douglas   v. 

Eyre.  Gilp.   (U.  S.  C.  C.)    147. 


Seo  200]  Public    Documeostts.  649^ 

Sec.  198.  Patents  for  Inventions. 

A  duly  certified  copy  of  a  patent  issued  by  the  authority  of  the- 
government,  proves  itself,  if  in  due  form  and  properly  executed 
and  certified  by  the  proper  officer  under  the  seal  of  his  depart- 
ment, and  a  second  or  duplicate  patent  is  of  as  high  authority  as 
evidence  as  the  original,^  and  the  authority  even  of  an  "  acting 
commissioner  "  cannot  be  questioned  in  a  proceeding  to  which 
he  is  not  a  party.^ 

Sec.  199.  Patents  for  Lands. 

The  recitals  of  a  United  States  land  patent  are  evidence  indis- 
putable of  the  consideration  upon  which  and  the  authority  under 
which  the  patent  is  issued  and  such  patent  is  prima  facie  evidence 
of  title  in  the  patentee.^  A  copy  of  an  old  land  patent  which  has 
been  for  many  years  recorded  in  the  proper  office,  is  admissible  as 
evidence  of  title,  although  it  does  not  appear  that  it  was  proved  or 
acknowledged,  or  that  the  person  signing  it,  signed  it  as  governor." 
Thus  in  the  case  last  cited  a  copy  of  a  patent  signed  "  Samuel  Mat- 
thers,"  dated  1658,  and  recorded  in  the  county  court,  together 
with  an  assignment  of  it,  which  assignment  was  acknowledged 
and  admitted  to  record,  was  held  evidence  of  title  in  Virginia, 
although  it  did  not  appear  that  the  patent  was  proved  or  acknowl- 
edged, or  that  it  was  signed  by  Matthers,  as  governor.  A  com- 
plainant alleged  in  his  bill  the  gi'ant  by  letters  patent  of  the  estate 
claimed  in  1705,  and  afterward,  on  the  introduction  of  the  letters 
patent  by  the  defendant,  objection  was  made  because  they  did  not 
bear  the  governor's  signature.  It  was  held  that  the  letters  patent 
were  valid  without  the  governor's  signature,  because,  as  the  royal 
grants  were  made  by  record,  and  not  by  deed,  and  the  letters 
patent  were  mere  transcripts  of  the  record,  the  great  seal  affixed 
to  the  transcript  was  evidence  of  the  grant  to  the  public.^  A  cer- 
tificate of  purchase  from  one  of  the  United  States  land  offices,  is 
evidence  of  an  equitable  interest  in  the  purchaser.*     The  admis- 

'Hines    v.    Greenlee.    3    Ala.    73:  ^  Lee  v.  Lappscott,  2  Wash.    (Va.) 

Peck  V.  Farrington,  9  Wend.   (N.  Y.)  276. 

44;   Davis  V.  Gray,  17  Ohio  St.  330.  *  Bogardus    v.     Trinitr    Church,    4 

nVoodworth   v.    Hall,    1    W.   &   M.  Sandf.  Ch.   (N.  Y.)  633. 

(U.  S.  C.  C.)    389.  "Kay  v.  Watson,  17  Ohio,  27. 

^  Ledbetter  v.  Borland,  128  Ala.  418, 
29  So.  579. 


050  Evidence.  [Chap.  20 

sion  of  a  patent  to  be  read  in  evidence  was  objected  to  because  the 
latter  C,  u,yed  as  a  Roman  numeral,  was  interlined ;  but  it  was 
admitted,  on  the  presumption  that  the  interlineation  was  made 
before  issuing  the  patent;  and  the  admission  was  held  not  to  be 
error. '^  Assignments  of  land  certificates,  left  in  the  general  land 
office  to  procure  a  patent,  are  not  admissible  in  evidence  as  "  copies 
of  records,"  etc.,  until  constituted  and  recognized  as  rscords  by  the 
issuing  of  the  patent.^  An  entry,  in  the  books  of  the  land  office, 
that  the  balance  of  tlie  purchase-money  was  paid  by  the  person 
"  to  whoTu  the  patent  had  issued,"  is  evidence  that  a  patent  did 
issue,  althougli  the  patent  is  not  produced.'^  A  patent  issued  on  a 
military  land  warrant,  under  the  law  of  a  State,  is  held  to  be 
pi'iwa  facie  evidence  that  every  prerequisite  of  the  law  has  been 
complied  witli.^  A  copy  of  tlie  final  certificate  of  lands,  granted  to  a 
patentee  by  the  United  States,  and  of  an  assignment  indorsed 
thereon  by  the  patentee,  certified  by  a  justice  of  the  peace,  who  is 
certified  to  be  such  by  the  register  of  the  land  office,  is  not 
admissible  in  evidence.'  Nor  is  a  patent  from  a  State,  of  lands 
sold  as  a  swamp  or  overflowed  lands,  prima  facie  evidence  as 
against  a  claimant  under  the  government  that  such  lands  are 
swamp  and  overflowed.^"  A  patent  for  United  States  land,  which 
appears  to  have  been  signed  by  the  president,  countersigned  by  the 
commissioner  of  the  general  land  office,  and  verified  by  the  seal 
of  that  office,  is  admissible  as  evidence,  without  proof  of  its  execu- 
tion." But  a  surveyor's  having  admitted  an  entry,  or  made  a 
survey,  or  a  patent  having  issued,  in  a  certain  name,  is  no  proof 
that  there  is  a  ])orson  bearing  that  name.'^^  Nor  is  the  rejK>rt  of  a 
surveyor,  unaided  by  a  certificate  of  survey  or  patent,  sufficient  to 
prove  the  land,  described  as  belonging  to  a  certain  person,  to  have 
betni  in  fact  surveyed  for  him,  and  included  in  his  pntent.^^  The 
time  when  a  certificate  was  returned  to'  the  land  office  is  matter 
of  fact,  determinable  by  the  jury. 

"Stevens   V.   Martin,    18    Penn.    St.  "Bowser     v.     Warren.    4     Blackf 

101.  (Ind. )  522. 

•Short  V.  Wade.  25  Tex.  510.  "  Finlav  v.  Humble.  2  A.   K.  Alar. 

MVillis  V.  Biicher.  3  Wash.   (U.  S.)  (Ky.)   569. 

300.  '    "Rico  V.  Welch.  1  Litt.   (Ky.)   74. 

"Bouldin  v.  Massie,  7  Wheat.    (IT.  Thus  a  petition  to  the  judjjes  of  the 

S.)   122.  land    office    by   one    A.,    with    certain 

'Scott    V.   Hancock,    3    Stew.   ^<c    P.  alterations  made  therein  in  the  hand- 

(Aln.)   44.  Vvritin?  of  a  clerk  of  that  office,  since 

'•  Keeran  v.  Allen,  33  Cal.  542.  dead,  stating  when  the  certificat«  was 


Sec.  200.]  Public  Documents.  651 

Sec.  200,  Copies. 

In  most  cases,  where  by  statute  certain  instruments  are  re- 
quired to  be  recorded  in  a  certain  manner,  a  copy  thereof,  duly 
certified  by  the  proper  recording  officer,  is"  admissible  in  evidence 
where  the  contents  of  the  instrument  becomes  material;  but 
although  an  instrument  has  been  in  fact  recorded,  yet  unless  it 
belonged  to  tlie  class  entitled  by  statute  to  be  recorded  its  contents 
cannot  be  proved  by  copy,^  although  it  is  held  in  some  of  the  cases 
that  with  other  proof  of  the  execution  of  the  instrument  a  certified 
copy  thereof  may  be  evidence.^  There  are  four  classes  of  copies, 
to  wit:  1st.  Examplifications ;  2d.  Office  copies;  3d.  Examined 
copies;  and  4th.     Certified  copies. 

Exemplified  copies  are  those  which  are  certified  under  the  great 
seal  (State  or  national),  and  those  which  are  certified  under  the 
seal  of  the  court  in  which  the  record  may  be  preserved.  But  even 
an  exemplified  copy  is  not  admissiible  in  evidence,  unless  the  in- 
strument is  one  which  is  required  to  be  kept  or  recorded  in  the 
department  of  the  government  in  which  it  is  deposited.  Thus  an  . 
exemplified  copy  of  private  deeds  is  not  admissible,  and  the  same  is 
true  of  any  private  document  or  instrument.^  But  an  exemplifica- 
tion of  any  instrument,  produced  from  the  proper  custody,  is  evi- 
dence. Thus,  an  exemplified  copy  of  a  commission  from  the  gov- 
ernment has  been  held  to  be  evidence,  although  the  seal  has  been 

lost." 

When  the  right  to  read  an  official  copy  is  claimed  under  a  stat- 

returned,    was    not   admitted    in    evi-  was  held  that  a  patent  and  certificate 

dence  to  prove  at  what  time  it  was  re-  of  survey  to  B.  for  the  same  tract  is 

turned,   or   to   prove  that   it  was   re-  not  admisible.       Green  v.   M'Girk,   1 

turned'before  a  certain  period,  as  the  Mo.  498. 

party  against  whom  the  testimony  is  ^  Childress    v.    Cutter,    16    Mo.    24 ; 

intended  to  operate  did  not  derive  any  N.  Y.  Dry  Docks  v.  Hicks,  5  McLean 

interest  in  the  land  under  A.     Ham-  (U.   S.),   Ill;  Miles  v.  Knatt,   12   G. 

mond  V.  Warfield.   2   H.  &  J.    (Md.)  &  J.   (Md.)    442;      Rashin  v.  Shields, 

151.      In   an    action   of   ejectment   by  11   Ga.   536;   Thomas   v.   Grand   Gulf 

A.  against  B.,  a  patent  certificate  vo  Bank,  17  Miss.  201;   James  v.  Gordon,- 

A.'s     legal     representatives,     without  1  Wash.   (U.  S.  C.  C.)   323;   Berry  v. 

other  evidence,  cannot  be  received  in  Matthews,  13  Md.  537. 

evidence,    and   such    certificate    is    no  *  Webster  v.  Harris,   16  Ohio,  490; 

evidence   of  title   in   A.     Matingly   v.  Carroll  v.  Norwood,  1  H.  &  J.    (Md.) 

Hayden,  1  Mo.  439.  Upon  issue  joined  167;    Parnell  v.   Knox,   16  Ala.   364; 

whether    A.    could    have    procured    a  Mitchell  v.  Mitchell,  3  S.  &  P.   (Ala.) 

title  from  the  United  States  to  a  cer-  81. 

tain  tract  of  land  located  by  him  by  '  Buller's  N.  P.  227. 

virtue  of  a  New  Madrid  certificate,  it  *  Beverley  v.  Craven,  2  M,  &  K.  140. 


652  EviDEijfCE.  [Chap.  20 

ute  declaring  suck  copy  evidence,  it  must  appear  that  all  formali- 
ties prescribed  by  the  statute  have  been  strictly  pursiued.^ 

Indeed,  it  is  held  that  an  exemplified  or  certified  copy  of  a 
sealed  instrument,  need  not  reproduce  the  seal.  Indicating  that 
there  was  a  seal,  by  the  letters  "  L.  S."  or  the  like  is  enough.® 

A  copy  of  an  instrument,  within  the  purview  of  the  stamp  act, 
made  previous  to  the  act,  may  be  used  in  evidence  without  being 
stamped.' 

The  certificate  of  a  copy  from  an  ofiicial  record,  must  be  by  the 
officer  having  the  record  in  charge,  and  authorized  to  certify.  A 
copy  certified  by  a  stranger  or  by  an  officer  wholly  unauthorized, 
cannot  be  received.^ 

It  seems,  however,  that  to  certify  copies  is  within  the  ordinary 
powers  of  a  duly  appointed  deputy  of  the  officer  named  by  law 
to  keep  the  charge  of  a  record ;  and  a  copy  certified  by  a  deputy 
acting  for  his  principal,  is  good.^ 

The  certificate  which  is  allowed  to  be  read  in  evidence  in  lieu 
of  the  production  of  papers  which  have  been  recorded  or  deposited 
in  a  public  office,  is  a  certificate  to  a  copy  of  the  instrument.  A 
certificate  by  the  officer  that  certain  facts  appear  by  the  records  or 
papers  on  file  in  his  office  cannot  be  received  under  statutes  author- 
izing the  use  of  certified  copies.^" 

An  office  copy  is  a  copy  made  by  an  officer  having  the 
custody  of  the  document  in  the  same  court ;  and  in  the  same  cause 
siich  a  copy  has  all  the  force  of  the  original.^^  Thus,  an  office  copy 
of  depositions  in  chancery  are  evidence  in  that  court,  but  they 
would  not  be  admissible  in  a  court  of  law,  without  examination,^^ 

"Smith    V.    United    States,    5    Pet.  (Penn.),    311;      Hoekenbury   v.    Car- 

(U.  S.)    292;   Crayton  v.  Hunger,   11  lisle.  1  W.  &  $.    (Penn.)   282. 

Tex.    234;      Butler   v.   Dunnagan,    19  *  Hague    v.    Porter,    45     111.     318; 

Tex.  559;     McDuffie  v.  Greenway,  24  Greason  v.  Davis,  9  Iowa,  219;  Moore 

id.   625;   Dixon  v.  Thatcher,   14  Ark.  v.   Farrow,   3  A.  K.  Mar.    (Ky.)    41; 

141;   Smith  v.  Brannan,  13  Cal.  107:  Triplett  v.  Gill,  7  J.  J.   Mar.    (Ky.) 

Brown  v.  Cady,   11  Mich.   536;   Max-  438;   Rives  v.  Rives.  4  id.  533. 

well  v.  Light,  1  Call.    (Va.)    117.  "Draughan  v.   The  Tombeckbee,  » 

"Holbrook   v.   Nichol,    36    111.    161:  Stew.    (Ala.)    54;   Given  v.   Boyle,  15 

State' v.  Bailey,  7  Iowa,  390;  Hedden  Me.  147;  Maguire  v.  Sayward,  22  id. 

V.  Overton,  4  Bibb   (Ky.),  406;   Com-  230;   English  v.  Sprague,  33  id.  440; 

pare  Falcott  v.  Delaware  Ins.  Co.,  2  Frute    v.    McDonald,    27   Miss.   610  j 

Wash.   (U.  S.)    449.  Drake  v.  Merrill,  2  Jones  L.   (N.  C.) 

'Montgomery  v.  Black,  4  H.  &  M.  368;   Barry  v.  Rhea,  1  Overt.   (Tenn.) 

(Md.)    391.  345;   Davis    v.    Loftin,    6    Tex.    489  j 

*Sehnertzell  v.  Young,  3  liar.  &  M.  Struthers  v,  Reese.  4  Penn.  St.  129. 

(Md.)    .502;   Woods  v.   Banks,    14   K.  "Lucas  v.  Fulford,  2  Burr.  1179. 

H.  101;   State  v.  Clark,   24  X.  J.   L.  "  Buller's  N.  P.  229. 
516;   Devling  v.  Willamson,  9   Watts 


Sec.  200.]  Public  Documents.  653 

except  in  the  trial  of  an  issue  out  of  chancery  ;^^  and  it  is  by  no 
means  certain  that  such  coi>ies  are  admissible,  even  in  that  case.^* 
To  illustrate  the  rule  that  office  copies  are  only  admis'siBle  in  the 
same  court  and  in  the  same  cause,  it  may  be  said  that  when  a 
sheriff  is  sued  for  a  false  return,  an  office  oopy  of  the  writ  and 
return,  although  in  the  same  court,  is  not  admissible,  for  the 
reason  that  the  cause  is  a  different  one.^^  But  in  such  cases  the 
■copies  should  be  compared  with  the  original  by  a  person  who  can 
swear  to  their  accuracy. 

An  examined  copy  is  a  copy  of  a  document  of  a  public  nature, 
which  is  required  to  be  kept,  made  by  some  person  who  can  swear 
to  its  accuracy,  or  which  has  been  compared  with  the  original,  word 
for  word  and  line  by  line,  by  the  witness  who  swears  to  its  accur- 
acy. What  are  i^ublic  documents  in  the  sense  that  an  examined 
copy  thereof  is  admissible  does  not  clearly  appear,  and  has  never 
been  accurately  defined,  but  the  term  seems  to  include  all  docu- 
ments in  which  the  community  at  large  is  interested,  and  which  it 
is  desirable  not  to  remove  from  their  place  of  deposit.^^  The  term 
would  clearly  include  all  records'  of  any  court  whatsoever,  and  all 
registers  of  births,  deaths  and  marriages;  registers  having  refer- 
ence to  shipping  and  navigation,  to  trade  and  to  the  public  health. 
The  rule  applies  equally  to  such  public  registers  kept  abroad,  as 
there  is  a  presumption  that  the  foreign  authority  in  whose  custody 
they  are  would  not  allow  their  removal  to  another  country.^^ 

An  examined  copy  of  a  record  or  otlier  document  must  be  proved 
by  a  witness  who  has  examined  it  line  for  line  with  the  original, 
or  who  has  examined  the  copy  while  another  person  read  the  orig- 
inal.^^  And  it  is  not  necessary  for  the  persons  examining  to  ex- 
change papers  and  read  them  alternately.^^  The  copy  must  not 
contain  abbreviations  which  do  not  occur  in  the  original.^*^  Where 
an  examined  copy  is  put  in  evidence  some  account  should  be  given 
of  the  original  record ;  thus,  it  ought  to  be  shown  that  the  record 
from  which  the  copy  was  taken  was  seen  in  the  hands  of  the  proper 
officer,  or  was  in  the  proper  place  for  the  custody  of  such  records.^^ 

"Highfield  v.  Peake,  M.  &  M.  109.  "  Reid  v.  Margison,   1   Camp.  469. 

"  Burnaud  V.  Nerat,  1  C.  &  P.  578.  "Gyles  v.   Hill,    1   Camp.   471,   n.; 

'■>  Pitcher  v.  King,  1  C.  &  K.  655.  Rolf  v.  Dart,  2  Taunt.  52. 

'» Lynch  v.  Gierke,  3  Salk.  154.  ^^  R.  v.  Christian,  C.  &  M,  388. 

"  Lanesborough's  Claim.   1  H.  L.  C.  "  Adamthwaite   v.   Synge,   1    Stark. 

510,   n.;   Abbott  v.  Abbott,  29   L.   J.,  183;   4  Camp.  372. 
r.  M.  &  A.  57. 


654  Evidence.  [Chap.  20 

In  this  country,  as  a  rnle,  where  a  document  is'  in  the  custody 
cf  an  officer,  who  is  required  to  keep  it,  a  certified  copy  thereof 
jnade  by  him  is  admissible,^^  and  this  obviates  to  a  large  extent  the 
necessity  for  examined  copies,  although  in  some  of  the  States  such 
certified  copies  are  not  received.^^ 

A  copy  of  a  policy  of  insurance,  proved  to  have  been  compared 
with  the  original  register  on  the  books  of  the  insurance  company, 
and  notice  given  to  produce  the  original  cannot  be  read  in  evidence, 
but  the  register  in  the  hands  of  the  company  should  be  exhibited, 
after  proving  the  existence  of  the  original  policy.^^  Nor  can  a  copy 
be  received  in  evidence  unless  the  witness  producing  it  makes  oath 
that  he  compared  the  copy  with  the  original.^''  And  generally  a 
sworn  copy  is  not  evidence,  if  objected  to.^^  A  copy  of  articles  of 
agreement,  the  authenticity  of  the  original  having  been  often 
acknowledged  by  the  adverse  party,  may  be  admitted  in  evidence 
on  proof  of  its  being  a  true  copy.^^  Sworn  copies  of  a  marriage 
contract,  executed  in  the  presence  of  the  lieutenant-governor  and 
Spanish  commandant  of  upper  Louisiana,  wuth  fhe  certificate  of 
the  commandant  that  it  was  a  copy  of  the  original  deposited  among 
the  archives  of  said  territory,  have  been  held  not  good  evidence  of 
the  marriage.^^  Proof  that  a  paper,  offered  as  evidence  in  a  cause, 
is  a  ti-ue  copy  of  the  original  admitted  to  be  lost,  was  held  to  be 
sufiicient  to  authorize  its  going  to  the  jury.^^  When  a  record  has 
become  illegible  by  lapse  of  time,  the  testimony  of  a  witness  who 
had  examined  and  copied  it  while  legible,  is  properly  received  to 
supply  the  defect.^**  An  examined  copy  of  an  instrument  which  it 
is  the  duty  of  a  public  ofiicer  to  record  and  give  copies  of,  may  be 
received  in  evidence,  in  any  proper  case,  without  proof  of  the 
original.^^ 

Certified  copies  are  those  which  are  certified  to  be  ac- 
curate by  some  officer  who  has  the  custody  of  the  original,  or  of  the 
records  thereof,  and  are  only  admissible,  as  a  ride,  where  the  origi- 
nal document  is  required  hy  law  to  he  recorded  or  kept  in  the  office 

"'Oakes   v.    Hill,    7    Pick.     (Mass.)  ^  Fitzgibbon    v.    Kinney,    3    Harr. 

442;     United   States  v.   Perchman.   7  (Del.)   317. 

Pet.    (U.   S.)    51;      United   States   v.  ^  Stevenson  v.  Dunlap,  7  T.  B.  Mon. 

.Johns.  4  Ball.    (U.  S.)   412.  (Ky.)    134. 

"  Hathaway  v.  Goodrich,  5  Vt.  Go ;  "  Chouteau  v.  Chevalier,  1  Mo.  343. 

Stephen  v.  Clements,  2  N.  H.  3!)0.  "Bullit  v.  Overfield,  2  Mo.  4. 

"United   States  v.   Shearman,   Pet.  '"Little  v.  Downing,  37  N.  H.  355. 

(U.  S.  C.  C.)    98.  "Farrar    v.    Fessenden,    39    N.    H. 

»Catlin   V.    Underbill,    4   McLean,  2CS. 
199. 


Sec.  201.]  Public  Documents.  655 

over  which  the  person  certifying  the  copy  presides.  In  some  of  the 
States,  even  where  by  law  a  document  is  required  to  be  recorded 
in  a  certain  office,  a  certified  copy  thereof  is  held  not  to  be  admis- 
sible in  evidence  unless  the  statute  makes  it  so,  or  a  foundation  is 
first  laid  for  the  admission  of  secondary  evidence.  But  as  in  most 
of  the  States  the  rule  is  otherwise,  and  as  the  matter  is  one  with 
which  the  practitioner  in  a  given  State  is  presumsd  to  be 
familiar,  it  will  not  be  practicable  to  refer  to  the  cases  or  tha 
instances  in  which  this  exception  to  the  general  rule  is  held. 

An  official  copy  duly  exemplified  or  certified,  and  within  the 
limits  authorized  by  a  statute,  is  received  as  piima  facie  evidence 
of  its  contents,  and  of  all  the  circumstances  necessary  to  authorize 
the  copy  to  be  used  without  collateral  proof. "^  And  the  person  who 
made  or  examined  the  copy  is  not  excluded  from  the  privilege  of 
using  it  in  evidence.^^  Statutes  enabling  a  party  to  use  official 
copies  of  writings  in  evidence,  do  not  impair  the  effect  of  the  origi- 
nals if  they  can  be  produced.^"  ^^or  are  they  exclusive  of  the 
common-law  rules  allowing  the  execution  and  contents  of  deeds  to 
be  proved  by  secondary  evidence.^'' 

Sec.  201.  Official  Certificates. 

Where  the  statute  provides  that  a  certified  copy  of  any  instru- 
ment required  by  law  may  be  introduced  in  evidence,  such  certi- 
fied copy  is  insufficient  to  establish  execution  and  delivery  of  the 
original" when  denied.^  Copies  of  deeds  recorded  are  admissible 
to  prove  a  claim  of  title  without  proof  of  execution  and  delivery 
where  the  deeds  belong  to  strangers.^ 

A  certificate  of  a  public  officer  in  another  State  is  not  admis- 

^  Warner  v.  Hardy,  6  Md.  525;  Mc  United  States  v.  Lamb,    12  Pet.    (U. 

Cauley  v.  State,  21  id.  556;  Bryan  v.  S.)    1. 

Wear   4  Mo    106;   Snyder  v.  Bowman,  'Official     bond,     Craw     v.    Abrams 

4  Watts   (Pa.).  133.  (Neb.,  1903),  97  N.  W.  296. 

"'Lynde   v.   Jiuld.   3   Day    (Conn.),  =  Colchester  Sav.  Bank  v.  Brown,  75 

499-  Ratcliffe  v.  Trimble, 'l2  B.  Men.  Conn.  09.  52  A.   316;   Frazee  v.  Nel- 

(Ky.)    32.  son,   179  Mass.   456,  61   N.   E.   40,  88 

'*Dobbs  V.  Justice.  &c.,  17  Ga.  C24;  Am.    St.    Rep.    391.        In    Louisiana 

Goodwyn    v.    Goodwyn,    25    id.    203;  copies  made  by  the  recorder  from  the 

Vose  V.  Manley,   19  Me.  331 ;   Day  v.  conveyance  book  in  his  office  are  cqn- 

Moore,   13   Gray    (Mass.),  .522;   King  sidered  copies  of  copies  and  inadmis- 

V.   Kenney,  4   Ohio.   93:      Sheehan  v.  sible    to    prove    title    to   real    estate, 

Davis,   17    Ohio    St.     157;     Miller  v.  Ruddock  Cypress   Co.   v.  Peyret,    113 

Hale,  26  Pen-n.  St.  432.  La.  — ,  37  So.  858. 

»Loftin    v.    Nalty,    24    Tex.    5J5; 


656  Evidence.  [Chap.  20 

sible  unless  made  so  bj  the  statute  of  the  forum  or  by  a  United 
States  statute.^ 

A  certified  copy  from  the  public  records  of  the  registrar  of 
hirths,  deaths  and  marriages  is  admis'sible  as  to  the  cause  of  death.* 

In  a  recent  case  in  Ehode  Island  a  copy  made  in  1857  of  the 
ancient  records  of  a  town  which  were  w^asting  away,  which  copy 
had  been  used  for  nearly  50  years  as  the  town  record,  was 
held  admissible  in  evidence  as  it  wag  said  that  every  presumption 
should  be  made  in  favor  of  its  correctness.^  The  office  of  commis- 
sioner for  United  States  courts  was  created  by  29  Stat.  184  and  in 
certain  cases  he  is  a  quasi  judicial  tribunal,  therefore  his  certified 
copy  of  the  record  he  is  bound  to  keep  is  evidence  of  the  truth  of 
the  matter  therein  cited  and  need  not  otherwise  be  proven.^  The 
certificate  of  the  secretary  of  State  of  the  general  government  under 
his  seal  of  office,  that  a  particular  person  had  been  recognized  by 
the  department  of  State  as  a  foreig-n  minister,  has  been  received 
as  full  evidence  of  his  official  standing,^  on  an  indictment  for 
arresting  the  person  so  accredited  contrary  to  an  act  of  congress. 
So  on  an  indictment  for  an  assault  and  battery  upon  an  attache 
and  secretary  to  the  legation  of  Spain,  the  certificate  of  the  secre- 
tary of  State  was  held  the  highest  and  the  best  evidence  of  the 
official  character  of  the  complainant.^  In  the  latter  case  the  cer- 
tificate was  dated  after  the  assault,  and  stated  that  Mr.  Feronda, 
charge  d'affaires  of  Spain,  had  introduced  the  complainant  as  a 
gentleman  attached  to  the  legation,  and  performing  the  duties  of 
secretary  of  legation.^ 

But  the  certificate  of  an  American  consul,  residing  in  a  foreign 
country,  attesting  the  official  character  of  a  person  there,  is  not 
evidence,  because  it  is  not  within  the  range  of  consular  duties.^*' 

*  James  v.  James,  35  Wash.  650,  77  « Ramsey  v.  Flowers    (Ark  )     SO  S 
Pac.  1080.  W.   147.                               v          /,            . 

*  Hennessy  v.  Metropolitan  Life  Ins.  ^  United  States  v.   Banner    1   Balr] 
€o.,  74  Conn.  699,  52  A.  490;   McKin-  (U.  S.  C.  C.)   2M. 

stry  V.  Collins,  74  Vt.  147,  52  A.  438.  « United  States  v.  Liddle,  2  Wash. 

Such  evidence  is  received  on  account  (U.  S.  C.  C.)   205. 

of  its  general  trustworthiness  and  the  °  United  States  v.  Ortega,  4  Wash. 

great   inconvenience  entailed  on  sum-  (U.  S.  C.  C.)   531. 

moninar  officers  continually  as  to  such  '">  Stein    v.    Stein's    Curator.    9    La. 

matters.     :Murray  v.    Supreme   Lodgs  277,    281:   Las   Caggas    v.    Larionda's 

N.  E.   Order  of  Protection,   74   Conn.  Svndics,  4  Mart.    (La.)    283;   Church 

"15'  52  A.  722.  v."  Huhbart,  2  Cranch  (U.  S.),  236. 

'  N.  Y..  N.  H.  &  H.  R.  R.  Co.  v.  Hor 
gan,  25  R.  I.  408,  59  A.  310. 


Sec.  201.]  Public  Documents.  657 

But  under  the  statute  of  New  York,  the  acknowledgment  of  a 
power  of  attorney  purporting  to  have  been  taken  before  a  consul 
of  the  United  States',  resident  in  a  foreign  country,  certified  by 
him  in  the  proper  form  and  authenticated  by  his  official  seal,  is 
sufficient  proof  of  the  execution  of  the  power  without  any  evidence 
aliunde  of  the  genuineness  of  the  signature  or  seal.^^ 

Where  the  official  character  of  a  notary  abroad  is  sought  to  be 
proved,  a  certificate  under  the  national  seal  of  the  foreign  country, 
attesting  that  the  person  certifying  the  instrument  is  a  notary  by 
regular  appointment,  would  be  evidence.^^  The  notary's  certifi- 
cate under  seal  proves  itself. ^^ 

In  New  Hampshire,  it  has  been  held  that  the  certificate  of 
the  county  clerk  in  New  York,  under  the  seal  of  the  county,  is 
competent  evidence  to  show  that  an  individual,  who  had  acted  as 
magistrate  in  taking  a  deposition  in  the  latter  State,  was,  in  fact, 
a  justice  of  the  peace.  The  decision  goes  upon  the  ground  that 
the  evidence  of  the  due  appointment  of  justices  in  New  York  is 
found  in  the  clerk's  office  of  the  respective  counties,  and  that  the 
elerk  of  the  county  in  which  the  justice  resides  is  the  proper  certi- 
fying officer  to  these  facts.^* 

The  certificate  of  an  officer,  by  way  of  attesting  an  independent 
fact,  and  not  to  authenticate  copies',  etc.,  is  hardly  ever  admissible, 
unless  rendered  so  by  positive  statutory  enactment.  Accordingly, 
the  certificate  of  the  secretary  of  North  Carolina,  that  a  grant  had 
not  been  recorded  in  his  office,  was  held  in  Tennessee  to  be  no  evi- 
dence. The  business  of  a  keeper  of  records,  say  the  court,  i&i  not 
to  certify  the  official  order  of  papers  from  which  official  facts  are 
inferred.  The  general  scope  and  substance  of  the  certificate  might 
more  properly  furnish  matter  for  a  deposition.^^  On  the  same 
principle,  the  certificate  of  a  clerk,  containing  a  historical  account 
of  the  proceedings  of  a  court,  hasi  been  held  inadmissible  ;  he  should 
certify  a  copy.^^  So,  too,  of  certificates  to  prove  the  loss  of  papers, 
which,  it  is  said,  must  be  shown  in  the  ordinary  way  of  proving 
other  facts." 

"  St.  John  V.  Creel,  5  Hill,  573.  ^=  Ayers      v.       Stewart,      1      Overt. 

"  Las  Caggas  V.  Larionda's  Syndics,  (Tenn.)   221. 

ante.  i«  Barry  v.  Rhea,   1   Overt.    (Tenn.) 

"Bank   v.   Gray,    2    Hill    (N.    Y.),  345;      Wilcox   v.   Ray,    1    Hayw.    (N. 

227.  C.)    410. 

"Dunlap  V.  Waldo,  6  N.  H.  450.  "Robinson  v.  Clifford,  1  Wash.  (U. 
42 


658  Evidence.  [Chap.  20 

In  Xew  York,  it  is  provided  by  statute  that  when  any  officer, 
to  whom  the  legal  custody  of  any  document  or  paper  shall  belong, 
shall  certify  under  his  official  seal  that  he  has  made  diligent  exam- 
ination in  his  office  for  such  paper,  and  that  it  cannot  be  found, 
such  certificate  shall  be  presumptive  evidence  of  the  facts  so  certi- 
fied in  all  causes,  matters  and  proceedings,  in  the  same  manner 
and  with  the  like  effect  as  if  such  officer  had  personally  testified 
to  the  same,  and  copies  of  all  papers  filed  with  the  county  clerk  are 
by  statute  rendered  evidence  in  all  courts,  when  certified  by  him 
in  like  manner  as  if  the  originals  were  produced ;  and  under  the 
statute  a  certified  copy  of  an  oath  of  office  so  filed  is  admissible  in 
evidence  in  a  suit  by  the  officer  for  hisi  services.^^  In  relation  to 
chattel  mortgages,  the  clerk's  certificate  is  rendered  evidence  of 
the  filing ;  but  the  mortgage  must  be  produced  and  proved  by  com- 
mon-law evidence ;  the  certificate  of  the  town  clerk  is  not  evidence- 
that  the  paper  certified  as  such  is  a  copy/^  The  agent  selling 
under  it  does  not  require  an  exact  copy.^"  The  general  principle  as- 
to  certificates  of  an  independent  fact  seems  to  have  been  acted  on 
in  Vermont  in  a  case  where  the  defendant,  in  ejectment,  in  stab- 
lishing  a  vendue  title  arising  out  of  the  collection  of  special  taxes, 
produced  a  certificate  from  the  clerk  stating  at  what  sum  the  com- 
mittee's account  of  their  expenditure  of  tax,  prior  to  the  sale,  was 
allowed ;  and  it  was  held  not  admissible,  and  that  a  certified  tran- 
script of  the  record  of  the  account  kept  by  the  clerk,  and  of  the 
allowance  upon  the  same,  was  the  only  legitimate  evidence.^^  So, 
in  jSTorth  Carolina,  where  the  clerk  was  authorized  by  statute  to 
certify  the  record  of  certain  bonds,  and  he  certified  that  "  the  fol- 
lowing, and  none  other,  were  the  bonds,"  etc. ;  held,  that  what 
the  clerk  had  attested  as  a  record  was  admissible,  but  that  which 
he  certified,  not  as  a  record  but  a  fact,  viz.,  that  no  other  bonds 
were  given,  was  not  evidence,  because  he  did  not  do  it  offi- 
cially.^^ In  Ohio,  where,  in  making  title  under  a  judgment  and 
execution,  the  execution,  as  certified  by  the  clerk,  varied  from  the 

S.  C.  C.)   1;  Wilcox  v.  Ray,  1  Hayw.  =°  Dane    v.    Mallory,    16    Barb.     (N. 

(N.   C.)    410.     Though  this   is  other-  Y.)   46. 

Avise    in    Pennsylvania.     See    Ruggles  "  Coit  v.  Wells,  2  Vt.  318. 

V.  Alexander,  2  Rawle    (Penn.),  232.  "Governor  v.  McAffee,   2  Dev.    (N. 

'*Devov    V.    Mayor,    &c.,    of    New  C. )    15.       This    doctrine    prevails    in 

York,  35  Barb.   (N.  Y.)   264.  Massachusetts     (Oakes     v.     Hill,     14 

"Bissell   V.   Pearee,  28   N.   Y.   252.  Pick.     [Mass.]     442);      and    in    New 

See,  also.  Fellows  v.  Hyring,  23  How.  York    (Wolfe   v.    Washburn,    6    Cow. 

Pr.  (N.  Y.)  230.  [N.  Y.]  261,  265.) 


Ssc.  201.] 


Public  Documents. 


650 


iudgmeiit;  held,  that  though  the  fact  of  such  execution  having 
issued  on  the  judgment  produced,  might  be  shown,  notwitjistand- 
ing  the  variance,  yet  it  could  not  be  established  by  the  clerk  s  cer^ 
tificate  His  certificate  is  good  so  far  as  it  relates  to  matter  of 
record  or  copies  of  papers  filed  in  his  office.  But  he  cannot  certify 
independent  facts  within  his  knowledge;  to  prove  such  things  he 
siiould  be  sworn.^^ 

In  general,  where  an  officer  is  not  required  by  law  to  certify 
his  doings,  and  he  does  so,  his  certificate  is  not  evidence.^^  Both 
of  the  cases  cited  in  the  last  note  were  instances  of  certificates  upon 
process  by  way  of  return,  when  no  s'uch  return  was  authorized. 
In  those  cases  where  the  law  makes  it  the  duty  of  an  officer  to 
make  a  return,  and  holds  him  responsible  for  its  truth,  it  is  gen- 
erally evidence.  Where  an  officer  is  authorized  by  statute  to  cer- 
tify and  his  certificate  is  rendered  evidence,  tlie  statute  is  not  to 
be  so  construed  as  to  authorize  him  to  certify  to  what  he  must 
necessarily  derive  from  mere  hearsay,  unless  the  legislature  have 
so  expressly  enacted.^^    In  such  cases,  the  certificate  is  not  to  be 


23  Bank  of  the  United  States  v. 
White,  1  Wright    (Ohio),  51,  52. 

'*  Hathaway  v.  Goodrich,  5  Vt.  65, 
Stephen  v.  Clements,  2  N.  H.  390^ 

^''See  Johnson  v.  Hocker,  1  Dall. 
(U  S  )-406;  Stewart  v.  Allison,  6  8, 
&  R.    (Penn.)    324,  329. 

Under  this  rule,  in  North  Carolina, 
where  the  certificate  of  an  adjutant- 
general  is  made  evidence  by  statute 
of  certain  delinquencies   in  not  mak- 
ing returns,  it  was  held  that  it  was 
not  evidence  of  such  delinquencies  as 
consisted    in   neglecting   to    make   re~ 
turns     to     other     officers,     but     oniy 
of      such      as      related      to      returns 
to     be  made     to     himself,  because  as 
to  the   former  he   could  have   no   of- 
ficial  knowledge,    and   must   rely    en- 
tirely   upon    hearsay.        Governor    v. 
Jeflf/eys,  1  Hawks    (N.  C),  207      See 
Governor  v.   Bell,   3  Murph.    (N.  C.) 
331.     Upon  the  same  principle,  a  law 
of  congress,  authorizing  transcripts  of 
treasury   accounts   to   be   received    as 
evidence,  was  held  to  extend  to  such 
accounts   only   as   arose   through   tb^ 
direct  official  dealings  of  the  depart- 
ment, and  an  account  for  moneys  re- 
ceived by  a  deputy  commissary,  from 
a  deputy  quartermaster,  to  the  use  of 


the  United   States,  is  not  within  the 
provision.        "  An   account   stated   at 
the    treasury    department,"    say    the 
court,  "  which   does  not  arise  in   the 
ordinary   mode   of   doing   business   in 
that  department,  can  derive  no  addi- 
tional   validity    from    being    certified 
under  the  act  of  congress.       Such  a 
statement  can  only  be  regarded  as  es- 
tablishing items  for  moneys  disbursed 
through  the  ordinary  channels  of  the 
department,    where    the    transactions 
are  shown  by   the  books.       In   these 
cases,   the   officers   may    well    certify, 
for  they  must  have  official  knowledge 
of    the    facts    certified.        But    where 
moneys    come   into   the   hands    of    an 
individual,  as  is  the  case  under  con- 
sideration, the  books  of  the  treasury 
do  not  exhibit  the  facts,  nor  can  they 
be  olficially  known   to  the  officers  of 
the  department.     In  this  case,  there- 
fore,  the   claim   must   be   established, 
not  by  the  treasury  statement,  but  by 
the  evidence  on  which  that  statement 
was  made."     United  States  v.  Buford, 
3  Pet.  (U.  S.)    12,  29.     And  where  an 
officer's   certificate    is   made   evidence.-, 
by  statute,  of  certain  facts,  he  cannot 
extend  its  effects  to  others  by  incorpo- 
rating them  with  those  to  which  he 


GGO 


Evidence. 


[Cliap.  20 


rejected  altogether,  but  such  parts  as  are  pertinent  and  official  may- 
be read. 

The  certificate  must  be  by  the  proper  ofiicer.  The  certificate  of 
the  register  of  the  treasury  department  of  the  general  government, 
under  his  hand,  was  offered  to  show  that  certain  receipts,  copies 
whereof  were  annexed,  were  on  file  in  his  ofiice.  This  was  accom- 
panied by  the  certificate  of  the  secretary  of  the  treasury,  under  the 
seal  of  the  department,  that  the  person  signing  the  same  was 
register;  yet  it  was  held  not  evidence,  for  although  the  register 
might  have  the  custody  of  the  papers,  yet  he  is  not  authorized  by 
law  to  certify  them.^®  The  certificate  should,  in  general,  be  by  the 
officer  who  has  at  the  time  the  legal  custody  of  the  evidence. 


is  authorized  to  certify.  Accord- 
ingly, in  North  Carolina,  under  the 
statute  above  referred  to,  in  an  action 
brought  to  recover  a  penalty  imposed 
upon  a  militia  officer  for  delinquency 
in  not  making  a  return,  it  was  held 
that  the  adjutant-general's  certificate 
could  not  reach  beyond  the  fact  of  the 
delinquency,  and  though  he  had  also 
certified  that  the  defendant  was  an 
officer,  yet  the  court  decided  that  the 
certificate  was  no  evidence  of  this,  but 
that  it  must  be  proved  independently. 
Governor  v.  Bell,  3  Murph.  (N.  C.) 
331.  So,  though  the  certificate  of  the 
inspector  of  ashes,  in  the  city  of  New 
York,  was  made  presumptive  evidence 
by  statute  of  the  facts  contained  in  it, 
yet  it  was  held  that  this  must  be 
understood  in  reference  to  those  facts 
to  which  the  statute  has  authorized 
him  to  certify,  viz.,  the  fact  of  in- 
s,pection,  the  quality,  weight,  tare, 
crustings,  scrapings,  etc.  These  he 
may  certify,  but  not  as  to  the  title. 
In  respect  to  the  latter,  he  has  no 
power  to  certify,  and  his  certificate 
will  not  be  regarded  as  evidence  on 
questions  relating  to  it.  Williams  v. 
Merle,  11  Wend.    (N.  Y.)    80.  82. 

Thus,  in  an  action  on  a  bond,  a  cer- 
tificate of  an  officer  was  introduced, 
which,  by  the  local  law,  was  compe- 
tent evidence  of  payment,  but  which 
also  stated  that  a  tender  had  been 
made  to  the  plaintifT  in  the  suit  in 
the  presence  of  H.  and  R.,  and  that 
he  had  refused  to  receive  it; 
M'Kean,  C.  J.,  delivering  the  opinion, 
said:   "We  certainly  should  not  per- 


mit Mr.  S.  (the  certifying  officer),  if 
he  were  here  present,  to  swear  that 
he  was  told  that  such  persons  were 
present  at  the  tender;  but  the  ques- 
tion is,  whether,  having  certified  what 
he  ought  not  to  certify,  the  whole 
ought  to  be  rejected.  We  think  it 
ought  not.  The  papers  should  be  ad- 
mitted to  prove  that  payment  was 
made  agreeably  to  the  act  of  assem- 
bly, at  the  time  mentioned.  All  the 
rest  may  be  struck  out;  or  indeed, 
only  so  much  as  goes  to  that  point 
be  read  and  admitted  to  be  proved." 
He  accordingly  read  to  the  jury  so 
much  as  related  to  the  receipt,  and 
suppressed  the  rest.  Johnson  v. 
Hocker,  1  Dall.  (Penn.)  406.  Sea 
Wolfe  v.  Washburn;  6  Cow.  (N.  Y.) 
265.  Certificates  are  to  be  confined,  iu 
their  operation  and  effect,  to  the 
special  purposes  contemplated  by  the 
law  authorizing  them.  Thus,  in  New 
Jersey,  a  certificate  of  surveyors  of 
highways,  and  in  the  New  York 
phrase,  "  fence  viewers,"  adjudginj; 
where  the  parties  therein  mentioned 
should  set  their  partition  fence,  wero 
held  not  admissible  evidence  on  the 
question  of  title.  The  order  of  the 
surveyors  is  intended  by  statute  for 
fixing  the  place  of  a  temporary  par- 
tition fence  until  the  place  shall  be 
legally  settled,  and  to  enable  the 
party  making  the  fence  to  recover 
from  the  other  his  just  proportion  of 
the  expense.  Corlis  v.  Little,  12  N. 
J.  Eq.  229. 

^Bleecker    v.    Bond,   3    Wash.    (U. 
S.  C.  C.)  529. 


Sec  201. J  Public  Documents.  661 

Thus,  to  prove  certain  passengers,  imported  by  the  defendants  into 
Pennsylvania,  to  be  convicts,  and  to  have  undergone  punishmenfi 
in  the  Spiel-House  of  Hamburgh,  in  Germany,  a  written^  report 
was  returned  with  a  commission  issued  in  the  cause,  containing  a 
lis't  of  the  convicts  in  the  Spiel-House,  which  report  appeared  to 
have  been  signed  by  the  late  directors  of  the  Spiel-House.^^  ihe 
court  held  the  paper  as  not  competent  evidence.  "  It  is  not,  said 
they,  "  an  ojficial  paper  certified  by  the  proper  officers,  who  at  the 
time  had  the  custody  of  the  Spiel-House  or  of  the  books.  They 
style  themselves  late  directors.^^ 

All  certificates,  receipts,  accounts  stated,  or  other  papers  framed 
by  private  persons,  stand  upon  the  footing  of  mere  naked  hearsay, 
and  they  are  never  allowed  to  possess  any  intrinsic  force  as  evi- 
dence against  third  persons,  and  cannot  be  received  to  affect  the 
rights  of  a  party.''  So  the  certificate  of  an  attorney,  to  prove  that 
adjudgment  had  been   obtained   on   certain  notes,   is  held   mad- 

missible. 

Certain  receipts  of  public  officers  have  made  an  exception.     In 
Louisiana,  the  receipt  of  the  receiver  of  public  moneys  for  govern- 
ment lands  has  often  been  held  sufficient  to  show  that  the  title  is 
out  of  the  government.^"    Where  land  has  been  sold  for  taxes,  a 
receipt  of  the  treasury  for  the  surplus  bond  required  of  the  pur- 
chaser by  the  act  of  assembly,  is  evidence,  in  favor  of  the  purchaser, 
of  the  fact  that  such  bond  had  been  executed  and  delivered.^^  Pay- 
ment for  land,  made  to  the  officers  of  the  land  office,  may  be  proved 
in  that  State  by  the  officer's  receipt.     On  the  same  principle,  it 
has  been  usual  to  admit  the  receipts  or  certificates  of  deputy  sur- 
veyors for  their  fees  and  expenses  of  survey.     But  a  certificate  of 
the  latter  kind,  given  after  the  deputy  had  ceased  to  hold  the 
office,  attesting  the  fact  of  his  having  received  the  fees,  etc.,  at 
a  previous  time,  and  not  at  the  time  the  money  was  paid,  is  not 
evidence  to  affect  third  persons.^' 

".Tones   v     Ross,   2   Call.    (Penn.1  (Penn.),  209;     Cluggage  v.  Swan,  4 

143  Binn.   (Penn.)    150. 

'«'Paull      V.      Maekey,      3      Watts  .  '^Fager     v.     Campbell,      5      Watts 

(Penn.),    110;   English   v.  Hannah,   4  (Penn.),  287. 

id   424-   Cutbushv.  Gilbert,  4  S.&  R.  ^=  Cluggage      v.      Swan,      4      Binn. 

(Penn.)   551,  555,  556.  (Penn.)    150. 

^"Tuthill   V    Davis,   20   Johns.    (N.  Thus,    to    prove   that   the  governor 

Y  )   285  ^f  the  '''^''^^  °*  ^t-  Thomas  refused  a 

'"Newport  v.   Cooper,   10  La.    155;  captain's    petition   for    leave   to    take 

Goddard     v.     Glodinger,     5     Watts  away  the  cargo  of  a  vessel,  the  gov- 


662 


Evidence. 


[Chap.  20 


In  respect  to  foreign  certificates,  they  have  occasionally  been 
admitted,  as  well  as  rejected,  upon  grounds  from  which  it  ig 
difficult  to  deduce  any  rules  of  a  very  general  nature.  Where  it 
is  probable  that  the  officer  of  another  country  would  not  make  a 
dej^osition,  his  certificate  has  been  received. 

Where  the  statute  allows  certain  facts  to  be  proved  by  the  certifi- 
cate of  an  officer,  the  certificate  must  comply  with  the  requirements 
of  the  statute  in  form  and  substance.^^  When  the  certificate  is 
made  according  to  law,  as  required  in  the  organization  of  banking 
associations,  and  acknowledged  and  recorded,  it  becomes  evidence 
of  the  organization.^*  So  the  certificate  of  the  organization  of  a 
transportation  company  is  conclusive  evidence  of  the  matters 
therein  stated  pursuant  to  the  requirements  of  the  statute. ^^     No 


ernor's  certificate,  given  at  the  time 
of  the  petition,  was  offered;  it  was 
not  under  seal,  but  was  proved  to  be 
in  his  hand\\riting,  ard  the  court  ad- 
mitted it,  saying:  "The  certificate  is 
of  an  official  act,  given  at  the  time, 
by  which  it  appears  the  captain  pe- 
titioned for  leave  to  take  away  the 
cargo,  which  the  governor  refused. 
We  know  no  way  by  which  that  fact 
could  be  better  proved  than  by  this 
certificate,  unless  the  deposition  of 
the  governor  had  been  taken,  which 
it  is  not  to  be  supposed  he  would  have 
consented  to  give.  This  is  very  dif- 
ferent from  evidence  of  matters  not 
official,  in  which  latter  case  such  cer- 
tificate could  not  be  admitted.  United 
States  v.  Mitchell,  3  Wash.  (U.  S.  C. 
C. )  95,  96.  In  another  case,  the  cer- 
tificate of  the  collector  of  Havana 
was  offered;  it  was  under  hi«  official 
seal,  and  stated  the  arrival  of  a  cer- 
tain ship  at  that  place  tor  the  pur- 
pose of  watering;  that,  to  effect  this 
object,  the  captain  was  obliged  to  pre- 
sent  himself  to  the  intendent-general 
of  the  royal  armes  and  treasury,  by 
whom  the  ship's  cargo  was  decreed  to 
be  sold,  on  account  of  the  scarcity,  at 
that  place,  of  the  articles  of  which  it 
consisted.  It  appeared  that  the  col- 
lector was  authorized  to  grant  sucii 
a  certificate,  by  a  local  law  of  Cuba, 
and  indeed  that  he  alone  could  do  so; 
but  the  court  denied  that  it  was  evi- 
dence. "  We  admit,"  say  they,  "  it 
is  an  authentic  instrument ;   but  still 


it  is  only  an  ex  parte  certificate  of  a 
fact,  which  the  officer  was  authorized 
to  certify;  but  is  not  the  best  evi- 
dence which  the  case  admits  of,  be- 
cause the  deposition  of  the  officer 
might  have  been  taken;  and  it  was 
important  for  the  defendant  to  have 
had  the  privilege  of  cross-examining, 
particularly  for  the  purpose  of  elicit 
ing  the  true  cause  of  the  order  of 
sale."  Wood  v.  Pleasants,  3  Wash. 
(U.  S.  C.  C.)  201,  203.  Washing- 
ton, J.,  added,  that  although  it  ap- 
peared that  the  Spanish  verb,  whicli 
in  this  certificate  was  translated 
"  decreed,"  means  also  "  ordered,  re- 
solved, determined,"  and  does  not 
necessarily  imply  that  it  was  in 
writing;  yet  that  the  decrees  of 
every  civilized  country,  in  respect  to 
the  sale  or  disposition  of  property, 
ought  to  be  presumed  written  until 
the  contrary  appears.  If,  he  said,  it 
had  appeared  that  the  decree  was  not 
in  writing,  evidence  of  its  purport, 
taken  in  a  proper  manner,  might  be 
received;  or  if  it  had  appeared  that 
the  officer  who  gave  the  certificate 
would  not  be  permitted,  by  the  gov- 
ernment of  Havana,  to  give  a  deposi- 
tion, inferior  evidence,  in  that  case, 
might  be  received. 

'^Rogers  v.  Jackson,  19  Wend.  (N. 
Y.)    383. 

"Burrows  v.  Smith.  10  N.  Y.  550. 

"Western  Trans.  Co.  v.  Scheu,  H) 
N.  Y.  408. 

Thus,  the  inspector's  certificate  un- 


gj,^  201.]  Pdblic  Docdmen-ts.  663 

greater  effect,  however,  will  be  given  to  the  certificate  that,  what 

facTs    heir  certificates  to  those  facts  are  competent  evidence  there- 
of -    Thus,  the  certificate  of  a  public  officer,  of  acts  done  m  the 
Lntion  of  bis  duty,  is  not  to  be  impeacbed  by  the  ev,den<^  o^a 
single  witness;-  but  extraofficial  certificates,  niade  by  an  ofi^cer 
are  not  admiiible  in  evidence.-     But  a  certificate  of  a  public 
officer  can  only  authenticate  copies.    It  cannot  prove  a  fact  a    the 
nonappearance  of  a  certain  name  on  the  records.^  An  officer  of  one- 
State  has  no  power  to  certify  to  the  official  character  of  a  person  who 
LI     his  ap^intment  under  another  State."  The  certificate  of  the 
register  of  births  and  deaths  for  the  parish  of  Orleans  is  held  to 
be'a  legal  do^ment,  creating  of  itself  a  pn,r^  f""^"-"";)''^ 
o    the  death  of  a  party."    Where  an  act  o    the  kg>f  ^'"^  " 
that  the  certificate  of  a  public  officer  shall  be  evidence,  a  paper 
produced  with  his  name  will  be  pri,m  fa..e  evidence    unless  the 
name  is  proved  not  to  have  been  signed  by  him."    But  an  official 
"rtfficate  is  evidence  only  so  far  as  the  matter  certified  come, 
within  the  official  duty  or  cognizance  of  the  officer,"  and  the  mere 
statement  of  a  fact  in  writing,  by  a  person  not  acting  m  any  official 

a»  .ection  34  of  the  P,a„..oad  act      ^i«oat.  «,^. Jt  wa.  heM Jn^.a,^^. 

ing    into    the    manner    m    which    'he      thus  made  w  ^ 

road  has  been  constructed.     People  v        ee't.M^    b  ^^^ 

f'''^'%V;  i^",""  Su?h"tompanS       Join^ir^t  o\  trustees  of  a  concealed. 
Barb.   (N.  Y->    "»■     °"™  "'  'y  ,5,       JbscondinR  or  non-resident  debtor  is 

:r:sS:n"/nr^e3=^jo  ^  nf-v/Sv  ^^^ 

Sr;h'a!,'lotp.eTer:S.in'n'unr;       ^^^.^.     WoSd  V.  Chapin,  13  N. 

£nt^^,^'rrth?e\itncrr^  -i;B;^;-.r„oW,Pet.    .U.S. 

S^rS^^d  i"n"tid™r-ThrHam:  'J^ol  ..  Nahors,  1  Stew.   ,A.a., 

mondsport&c     Plank    Koad    Co^  v  "-■       .^.^  ^    Anderson,  21  Ga.  301. 

l^wtfe    "vmale'^or^'Jat^i  tas  « Q-Bannon    v.    Paremour,    24    Ga. 

rotiaTtlle^"  ,r:  'SiScot"::  -succession  of  Jones,  12  La.  Ann. 

^l;Haflroc,:,S'o!i'oO.\";L"(^'s|  V.^her   V.    dohnson,    3   H.    .  J. 

^:t^  coiiSe'rf  °andnh\'i;t;:  '^^U^^m'an  v.  Doe,  5  Miss.  522.        . 


664  Evidence.  [Cliap.  20 

capacity,  is  not  a  certificate,  and  the  calling  it  by  that  name  can- 
not alter  its  character  or  clothe  it  with  official  solemnity/*  The 
certificate  of  an  officer,  when  by  law  evidence  for  others,  is'  com- 
petent evidence  for  himself,  provided  he  was,  at  the  time  of  mak- 
ing it,  competent  to  act  officially  in  the  matter  to  which  it  relates/^ 
The  certificate  of  a  governor  of  a  foreign  island,  registered  in  the 
admiralty  at  Martinique,  relative  to  an  order  issoied  by  him,  is 
held  evidence  to  go  to  a  jury  ;*®  so  the  official  certificate  of  the  secre- 
tary of  the  government  of  Florida  during  the  dominion  of  Spain 
over  the  territory,  after  evidence  that  no  originals  could  be  found 
in  the  proper  office,  was  held  sufficient  evidence  of  the  copies  of  the 
petition  and  decree  of  the  governor,  no  proof  having  been  given  to 
impair  or  contradict  the  force  of  the  same."  The  certificate  of 
the  governor  of  St.  Thomas  (the  signature  being  proved),  with- 
out a  seal,  given  at  the  time  the  captain  petitioned  for  leave  to 
depart  with  his  cargo,  that  such  petition  was  refused,  was  held  to 
be  an  official  act,  by  a  person  who,  it  is  probable  would  not  give  a 
deposition,  and  is  different  from  matters  not  official,  and  might  bo 
read  in  evidence.^^ 

The  certificate  of  the  secretary  of  an  incorporated  company, 
bearing  its  s-eal,  affords  prima  facie  evidence  of  the  facts  therein 
stated.  The  court  is  bound  to  presume,  from  such  certificate,  that 
legal  notice  was  given  to  the  stockholders  of  the  company  of  a 
meeting  of  which  they  were  entitled  to  be  notified.^^  So  the  certifi- 
cate of  a  commissioner  for  Louisiana  of  the  official  capacity  of  the 
clerk  of  a  county  court  in  another  State,  affords  prima  facie  pre- 
sumption of  the  legal  authority  of  the  clerk  to  do  what  he  is  shown 
to  have  done,  to  wit,  to  receive  the  acknowledgment  of  a  deed.^" 
A  secretary  of  a  banking  corporation  is  not  a  certifying  officer,  and 
therefore  his  copies  must  be  sworn  to.^^  So  the  certificate  of  the 
clerk  of  a  religious  society  that  a  person  had  ceased  to  be  a  mem- 
ber of  such  society  is  not  legal  evidence  of  the  f act.^^  So  in  an 
action  to  recover  for  work  done  in  building  a  highway,  in  which  it 

"Runk  V.  Ten  Eyek,  24  N.  J.   L.  "New   Orleans,   &c.,   R.   K.   Co.    v. 

756.  Lea,  12  La.  Ann.  388. 

"McKnight  v.  Lewis,  5   Barb.    (N.  ""Tucker    v.    Burris,    12    La.    Ann. 

Y.)   68L  871. 

"  Bingham  v.  Cabot,  3  Dall.  19.  "  Hallowell,   &e..   Bank  v.  Hamlin, 

*■  United   States  v.  Acosta,   1  How.  14  Mass.  178. 

(U.  S.)  24.  «Oakes  v.   Hill,    14  Pick.    (Mass.V 

"United    States     v.     Mitchell,     3  442. 
Wash.  (U.  S.)  95. 


Sec.  201.]  Public  Documekts.  665 

is  material  to  prove  that  tlie  work  was  done  in  good  faith,  a  certifi- 
cate delivered  by  the  chairman  of  the  county  commissioners  to  the 
plaintiff,  that  the  highway  had  been  gi-aded  and  worked  to  their 
acceptance,  is  incompetent.^^  An  unsworn  certificate  by  an  engi- 
neer, to  a  paper  purporting  to  be  a  copy  of  estimates  made  by  his 
predecessor  in  office,  of  the  number  of  feet  in  certain  railroad 
bridges,  is  not  admissible  in  an  action  upon  the  contract  to  recover 
the  price  for  building  such  bridges.^*  In  New  Hampshire,  a  sur- 
veyor's return  of  his  doings,  ujx>n  a  warrant  for  the  collection  of 
highway  taxes,  is  held  not  to  be  competent  evidence  to  be  offered 
to  a  jury  to  prove  the  facts  stated  in  his  return,  the  statute  not 
making  his  warrant  a  returnable  proces's.^^  But  the  certificate  of 
the  proper  recording  officer  is  competent  evidence  of  the  fact  that 
an  instrument  to  which  it  is  attached  has  been  recorded  as  therein 
certified.^^  A  collector  of  taxes  is  a  public  officer  to  whose  official, 
acts  credit  should  be  given;  his  duplicate,  and  an  entry  made 
therein  by  him  of  the  payment  of  a  tax,  is  good  evidence  of  the 
fact  of  payment,  independent  of  the  oath  of  the  collector  himself  .^^ 
So  a  certificate  of  one  who  officiated  asi  mid-wife  at  the  birth  of  one 
whose  minority  is  in  issue,  is  relevant ;  and  if  the  parties  agree  to 
waive  the  oath  and  cross-examination,  it  is  also  competent  evi- 
dence, when  connected  with  other  evidence  to  the  same  point. ^^ 
In  South  Carolina,  the  sufficiency  of  the  security  furnished  by  a 
guardian  appointed  out  of  the  State'  must  be  proved  by  the  exam- 
ination of  witnesses ;  and  the  certificate  of  the  officer  by  whom  the 
guardian  was  appointed  is  not  sufficient.^^  In  Virginia,  an  audi- 
tor's certificate  of  forfeiture  of  land  for  non-payment  of  taxes, 
being  a  paper  which  he  is  authorized  by  law  to  make,  and  being 
made  in  the  customary  form,  proves  itself.^"  A  genealogical  table, 
certified  under  the  seal  of  a  foreign  officer,  is  not  evidence.^^  A 
letter  from  the  land  commissioner,  stating  tliat  certain  entries  are 
good,  and  others  bad,  is  not  evidence  of  anything,  except  the  com- 
missioner's private  opinion,   and  is  inadmissible.^^     So'  a   letter 

"Eeed  v.  Scituate,  7  Allen   (Mass.)  ^»  Exp.  Copeland,  Rice  Ch.    (S.  C.) 

141.  69. 

"Lanffford  v.  Sanger,  35  Mo.  133.  «» Usher  v.  Pride,  15  Gratt.    (Va.) 

■"'Davis  V.  Clements,  2  N.  H.  390.  190. 

"«  Ferrjiison  v.  Clifford,  37  N.  H.  86.  "  Banert  v.  Day,  3  Wash.    (U.  S.) 

"Lewisbnrg  v.  Augusta,  2  W.  &  S.  243. 

(Penn.)   65.  «*  Jeanes  v.  Lawler,  33  Ala.  340. 

''^Beates  v.  Retallick,  23  Penn.  St. 
288. 


C66  Evidence.  [Chap.  20 

of  tlie  State  auditor  in  reference  to  matters  of  banking,  etc.,  is  not 
of  itself  evidence ;  that  officer  is  required  to  keep  a  seal,  and  his 
official  writings,  etc.,  can  only  be  properly  authenticated  by  the 
use  of  it.^^  In  Indiana,  under  a  statute  which  provided  that  the 
sworn  certificate  of  a  corporation  clerk  to  an  extract  of  the  records, 
should  be  admissible,  it  was  held  that  the  statute  refen-ed  only 
to  the  admissibility  of  the  copy,  not  to  its  effect  when  admitted, 
and,  therefore,  if  any  unsworn  certificate  be  admitted  without 
objection,  it  is  as  effective  as  if  sworn  to.®^  The  indorsement  and 
signature  of  the  treasurer  being  expressly  authorized  and  required 
on  county  warrants,  by  statute,  such  writing  is  competent  evidence 
of  the  fact  stated  or  certified  in  such  indorsements.^*  A  certificate 
of  publication,  signed  by  the  editor  only,  is  not  proof  of  publica- 
tion.^® 

Sec.  202.  Certificates  by  Executive  Officers. 

"  Official  reports  and  certificates  made  contemporaneously  with 
the  facts  stated,  and  in  the  regular  course  of  official  duty,  by  an 
officer  having  personal  knowledge  of  them,  are  admissible  for  the 
purpose  of  proving  such  facts."  So  in  a  suit  on  the  bond  of  a 
government  contractor  an  official  finding  by  the  postmaster  gen- 
eral based  on  official  reports  to  him,  that  the  principal  is  a  "  fail- 
ing contractor,"  is  prima  facie  evidence  of  the  facts  contained  in 
the  report.^  But  this  rule  is  limited  to  such  statements  in  official 
documents  as  the  officers  are  bound  to  make  in  the  regular  course 
of  official  duty.  The  statement  of  extraneous  or  independent  cir- 
cumstances, however  naturally  they  may  be  deemed  to  have  a 
place  in  the  narrative,  is  no  proof  of  such  circumstances.^  The  cer- 
tificate of  the  librarian  of  congress  that  copies  of  a  copyrighted 
book  were  received  as  required  by  law  is  competent  although  not 
under  seal.^  A  certificate  of  the  secretary  of  State,  stating  the 
liractice  in  "his  office  with  regard  to  the  time  of  affixing  the  seal 
of  the  State  to  warrants,  is  no  evidence  to  show  the  time  at  which 

"Morfvan    County  Bank   v.   People,  » United   States    v.   McCoy     193    U 

21  111-  -04.  S.  593,  601,  24  S.  Ct.  528 

"Smith    V.    Indiana,    &e.,    Railway  ==  United  States  v.  Corwin    129  U   S 

Co.,  12  Ind.  61.  381.  9  S.  Ct.  318. 

°*  Clark   V.   Polk   County,   19    Iowa,  '  Belford  v.  Scribner    144  U   S   488 

248.  505,  12  S.  Ct.  734. 

"Hay  V.  M'Kinnev,   7   J.  J.   Mar. 
(Ky.)    441. 


S©c.  202.]  Public  Documents.  667 

such  seal  wag  annexed;^  nor  is  tlie  certificate  of  the  register  of  the 
treasury  department,  under  his  hand,  that  certain  receipts,   of 
which  copies  are  annexed,  are  on  file  in  his  office,  with  a  certifi- 
cate of  the  secretary  of  the  treasury,  under  the  seal  of  that  depart- 
ment, that  he  is  the  register,  evidence.     It  must  appear,  not  only 
that  the  officer  who  gives  the  certificate  has  the  custody  of  the 
papers,  but  that  he  is  authorized  by  law  to  certify  them,  and  the 
register  is  not  so  authorized.     A  sworn  copy  should  be  produced. 
And  although  the  auditor's  report  of  a  balance  due  from  a  person 
accountable  for  public  money  is  a  guide  to  the  comptroller  as  to 
the  amount  to  be  sued  for,  it  is  not  evidence,  for  the  court,  of  the 
debt.^    The  seal  of  the  treasury  department  of  the  United  States, 
and   the   signature  of   the   secretary,    are  sufficient   evidence    to 
authenticate  the  official  acts  of  the  secretary  in  a  State  court.'  The 
-  certificate  of  the  secretary  of  State  that  a  certificate,  required  by 
the  statute  relative  to  the  formation  of  corporations,  has  not  been 
filed  in  his  office,  is  not  evidence  of  that  fact  f  but  a  certificate  of 
incorporation  from  the  office  of  the  secretary  of  State  is  admissi- 
ble, altliough  the  original  date  has  been  erased  by  the  secretary, 
and  the  true  date  inserted.^     In  a  suit  on  a  promissory  note  given 
in  consideration  of  the  assignment  of  a  patent  right,  the  defendant 
offered  the  certificate  of  the  commissioner  of  patents,  under  his 
seal  of  office,  stating  that  no  such  patent  had  been  issued,  and  it 
was  held  that  such  evidence  was  inadmissible.^*^    A  certificate  of  a 
secretary  of  State,  that  a  certain  grant  is  not  recorded  in  his  office, 
is  not  admissible  evidence  in  an  action  of  trespass  to  try  title  to  the 
land  mentioned  in  the  grant.^^    A  letter  of  the  postmaster-general 
was  read  without  objection  to  prove  defaults  in  executing  a  con- 
tract ;  but  a  certificate  of  the  postmaster-general  to  rebut  this,  being 
objected  to,  was  held  not  competent. ^^    Nor  is  a  note  of  the  secre- 
tary of  State  appended  to  an  act  of  the  general  assembly,  as  pub- 
lished in  pamphlet  form,  stating  that  the  act  was  published  in  cer- 
tain   papers    at    a    given    date,    evidence    of    the    fact.^^    On  a 

*  Brown  v.   Galloway,  Pet.    (U.   S.  'Johnston   v.    Ewing,   &c.,   Univer- 

C.  C.)  291.  sity,  35  111.  518. 

^  Bleecker  v.  Bond,  3  Wash.  529.  "  Stoner  v.  Ellis,  6  Ind.  152. 

« United  States  v.  Patterson,  Gilp.  "  Ayres      v.       Stewart,      1     Overt. 

44.  (Tenn.)    221. 

^  White     V.      St.     Guirons,     Minor  '^  Wilkinson    v.     Jewett,     7     Leigh 

(Ala.),  331.  (Va.),  115. 

« Cross  V.  Pinckneyville  Mill  Co.,  17  "  AMen      v.      Dunham,      1     Greene 

111.  54.  (Iowa),  89. 


668  Evidence.  [Chap.  20 

motion  by  a  principal  sheriff  against  his  deputy,  for  a  failure  to 
account  for  a  part  of  the  revenue,  the  auditor's  certificate  of  the 
amount  of  taxes  is  admissible  evidence.^*  So  the  certificate  of  the 
treasurer  is  admissible  evidence  to  prove  the  indebtedness  of  the 
collector  of  the  State  tax,  although  the  clerk  of  the  county  com- 
missioners gave  testimony  that  it  did  not  appear  from  their  books 
that  any  tax  was  levied  during  the  years  that  the  collector  was^ 
charged  with  taxes  on  the  books  of  the  treasury. ^^  A  constable's 
return  of  his  service  of  an  order  of  notice  issued  by  a  city  council, 
under  an  ordinance  of  tlie  city,  is  competent  evidence,  supported 
by  his  testimony  that  he  has  no  doubt  of  its  truth,  although  he  has 
no  recollection  of  the  fact  of  service.^^  But  the  certificate  of  a 
sheriff,  who  has  sold  land  for  taxes,  of  his  having  posted  a  certain 
advertisement  at  a  certain  time  and  place,  is  inadmissible." 

Sec.  203.  Certificates  by  Clerks. 

A  municipal  ordinance  may  be  proved  by  a  copy  certified  by  the 
city  clerk  as  it  is  a  public  record  and  falls  within  the  rule  that  pub- 
lic records  may,  independent  of  statute,  be  proven  by  copies  certi- 
fied by  the  officer  having  such  records  in  charge.  A  certificate  of 
city  records  signed  by  the  clerk  to  the  mayor  and  council  of  the  city 
may  be  proper  where  the  clerk  describes  himself  as  "  collector  of 
council "  asi  any  description  is  sufficient  which  identifies  the  per- 
son who  acts  in  that  capacity  and  as  such  has  custody  of  the  official 
records  of  the  city.^  The  certificate  of  a  county  clerk,  showing  that 
a  certain  person  was  not  a  justice  of  the  peace  at  the  date  of  an 
acknowledgment,  purporting  to  have  been  taken  by  him,  is  com- 
petent, but  not  conclusive  evidence  of  such  fact.^  So  the  certificate 
of  a  town  clerk  that  a  claim  for  medical  services  rendered  to  a 
pauper  had  been  presented  to  the  board  of  trustees,  and  was  by 
the  board  declared  to  be  correct,  and  recommended  to  be  paid,  was 
held  to  be  admissible  evidence,  but  not  decided  to  be  sufficient.* 

A  certificate  of  a  clerk  of  court  sufficiently  identifies  the  record 

"Johnson    v.     Thompson,     4     Bibb  Railway   Co.   v.   Owen     132  Ala    420 

(Ky.),  294.  31  So.  598. 

"Crane  v.  State,  1  Md,  27.  ^Anderson  v.  Blair,  121  Ga    120,  48 

"Hildreth     v.     Lowell,      11     Gray  S.  E.  951. 
(Mass.),  345.  'Ross  v.  Hole,  27  111.  104. 

"Wells  V.  Burbank,  17  N.  H.  393.  *  Fayette    County    v.    Chitwood,    8 

^  Younglove   v.   Knox,  44   Fla.   743,  Ind.  504. 
33    So.    427;   Selma    St.   &   Suburban 


Sec.  203.]  Public  Documents.  669 

referred  to  where  tlie  record  is  attached  to  the  certificate  although 
on  a  separate  sheet  of  paper.^  Under  a  statute  requiring  the 
authentication  of  a  foreign  judgment  by  the  certificate  of  a  judge 
and  also  by  the  clerk  of  the  court  a  certificate  signed  by  a  judge 
alone  is  sufiicient  where  he  is  also  the  clerk.^  A  certificate  of  the 
clerk  of  the  court  is  insufficient  to  impeach  his  record  entry.'^  So 
if  full  proof  is  demanded  to  support  a  claim  against  an  estate,  the 
certificate  of  the  clerk  of  the  county  court,  stating  that  a  note  for 
the  sum  claimed,  in  favor  of  the  claimant  and  against  the  deceased, 
was  deposited  in  his  office,  and  the  ex  parte  deposition  of  his  Suc- 
cessor, that  no  such  note  could  be  found  in  the  office  after  diligent 
search,  are  not  sufficient  to  establish  it*  But  the  certificate  of  the 
elerk  of  the  court  of  errors  is  evidence  of  the  reversal  of  a  judg- 
ment,^ and  the  certificate  of  the  clerk  of  the  circuit  is 
sufficient  evidence  that  a  cause  was  not  tried  at  the  circuit.^''  A 
certificate  that  certain  persons  were  appointed  inspectors  of  elec- 
tions, found  in  the  town  clerk's  office,  proved  to  be  in  the  hand- 
writing of  a  former  town  clerk,  and  signed  by  the  clerk,  supervisor, 
and  a  justice  of  the  town,  and  filed  by  a  former  town  clerk,  is  ad- 
missible evidence.^^  But  the  certificate  of  a  town  clerk,  that  a  per- 
son has  not  conveyed  land,  is  not  evidence  of  that  fact.^^  The  cer- 
tificate of  a  town  clerk,  on  a  deed,  of  the  time  when  it  was  received 
into  his  office,  pursuant  to  the  statute,  is  only  prima  facie  evidence 
of  the  facts  recited  in  the  certificate,  and  may  be  contradicted  by 
parol  proof. ^^ 

Sec.  204.  Certificates  by  Judicial  Officers. 

The  certificate  of  a  magistrate  of  the  acknowledgment  of  a  deed 
is  sufficient  to  admit  in  evidence,  though  it  is  not  under  seal  ;^  and 
the  same  is  true  as  to  a  certificate  of  a  magistrate  that  an  oath  re- 
quired by  .law  was  taken,  although  the  oath  as  certified  varies  in 
form  from  that  prescribed  by  law.^     The  certificate  of  a  judge  of 

^Bartholomew     v.     Green      (Iowa,  "  People  v.  Cook,  14  Barb.    (N.  Y.) 

1905),  102  S.  D.  777.  259. 

« Wilson    V.    Phoenix    Powder   Mfe.  '^  Hill  v.  Bellows,  15  Vt.  727. 

Co.,  40  W.  Va.  413,  21  S.  E.  1035,  52  "  Bartlett  v.  Boyd,  32  Vt.  256. 

Am.  St.  Rep.  890.  ^  Fellows  v.   Pedriek,   4  Wash.    ( U. 

^Holmes  v.  Budd,  U  Iowa,  18G.  S.)   477. 

» Young  V.  Mackall,  4  Md.  3G2.  'Rose   v.    Kennedy,    1    Cranch    (U. 

»Hoy  V.  Couch,  6  Miss.  188.  S.  C.  C),  29. 

"Wright  X.   Mungy,  6  Johns.    (N. 
Y.)    286. 


670  Evidence.  [Okap.  20 

probate  is  not  admissible  to  show  wlio  are  the  heirs  of  a  deceased 
person.^  The  official  certificate,  or  the  testimony  of  the  officer  who 
administered  the  oath  required  by  law  to  road  viewers,  is  more 
authentic  that  the  mere  statement  in  the  report  of  such  viewers  that 
they  had  been  duly  sworn/  In  an  action  upon  a  jail  bond,  the  cer- 
tificate of  the  justices  of  the  quorum,  tliat  the  execution  creditor 
was  notified  according  to  law,  is  conclusive  evidence  of  that  fact.^ 
The  certificate  of  a  judge  of  probate,  or  of  the  clerk  of  the  county 
court,  is  not  competent  evidence  to  show  that  a  person  is  a  public 
administrator.  Those  officers  can  only  certify  to  the  correctness  of 
copies  of  records  of  their  several  courts',  showing  their  appoint- 
ment. A  certificate  by  a  surrogate,  of  facts  known  to  him  by  in- 
spection of  his  office  records,  is  not  evidence.  "Where  the  certificate 
is  made  as  to  an  official  act,  it  seems  that  it  is  admissible,  although 
made  after  the  close  of  the  officer's  term  of  office.''  Thus  in  tres- 
pass for  selling  property  by  virtue  of  an  execution,  the  certificate 
of  the  justice  of  the  peace  who  rendered  the  judgment  and  issued 
the  execution  was  held  evidence,  as  well  for  himself  as  for  the 
plaintiff  in  the  execution,  though  such  certificate  wag  granted  after 
the  expiration  of  the  office  of  the  justice.^ 

Sec.  205.  Notarial  Certificates. 

It  will  be  presumed  in  a  paper  sworn  to  before  a  notary  that  the 
notary  has  complied  with  the  statute  and  that  the  inscription  upon 
his  seal  speaks  the  truth  and  that  the  venue  set  out  in  his  jurat 
is  correct,^  and  where  a  notary's  certificate  of  acknowledgement  of 
a  deed  is  sought  to  be  impeached  and  the  presence  of  the  officer, 
the  presence  of  the  instruments  themselves,  the  presence 
of  the  grantors  for  signature  and  the  signing  of  the 
papers  then  and  there  by  them  are  shown  the  notary's  certificate 
of  acknowledgment  is  not  open  to  impeachment  in  the  absence 
of  fraud  or  duress  by  proof  that  the  grantors  did  not  in  fact 
acknowledge  the  instruments.^    But  the  notary's  certificate  is  said 

•Greenwood    v.    Spiller.    3    111.    (2  *  Mavnard    v.    Thompson,    8    Wend. 

Scam.)   502.  (X.  Y.)    393. 

*Dollarhide    v.    Muscatine    Countv.  'Cox  v.   Stern,   170  111.  442,  48   N. 

1  Greene  (Iowa),  158.                           '  E.  906.  62  Am.  St.  Rep.  385. 

"Black  V.  Ballard,  13  Me.  230.  ==  American     Freehold,    etc.,    Co.    v. 

•Littleton  v.  Christy,  11  Mo.  390.  Thornton.  108  Ala.  258,  19  So.  302,  54 

^Armstrong  v.  Boylan,  4  N.  J.  L.  Am.  St.  Rep.  148,  and  note  page  150. 
76. 


Siec.  205.] 


Public  Documents.  671 


to  be  without  jurisdiction  and  so  open  to  impeacliment  on  conten- 
tion that  the  party  never  appeared  before  the  notary,    or  that^the 
notarial  certificate  was  made  before  the  signature  of  the  party,    or 
that  the  party  was  insane  at  the  time.^     Where  an  affidavit  is 
required  to  be  on  oath  and  the  officer  fails  to  sign  the  jurat,  the 
paper  may  be  admitted  if  it  is  proved  that  the  affidavit  was  actually 
made  but  in  the  absence  of  such  proof  the  paper  itself  although  m 
the  form  of  an  affidavit  will  be  considered  as  no  affidavit  at  all.     A 
notarial  copy  of  a  lost  note  was  permitted  to  go  to  the  jury  as  a 
presumption,  in  connection  with  the  testimony  of  a  witness,  that 
the  paper  shown  to  the  notary  was  the  same  which  had  been  m 
the  witness's  possession  and  acknowledged  by  one  of  the  defend- 
ants '     A  copy  of  the  manifest  of  the  cargo  taken  in  at  Havana, 
and  certified  without  a  seal  by  a  notary,  with  a  certificate,  signed 
by  three  notaries,  that  full  faith  and  credit  ought  to  be  given  to 
the  acts  of  their  associate,  was  not  permitted  to  be  read  m  evidence, 
because  it  did  not  appear  that  the  notary  had  charge  of  these 
papers,  and  authority  to  authenticate  them.     A  notarial  seal,  ap- 
plied as  required  by  the  law  of  the  place  where  it  is  affixed,  proves 
itself,  and  is  sufficient  evidence  of  the  official  character  of  the 
notary  using  it.^     In  a  chancery   attachment  against  a  British 
bankrupt,  a  notarial  copy  of  the  commissioner's  proceedings  is 
evidence.^"    The  characters  "  N.  P."  following  the  name  of  a  per- 
son signing  the  certificate  of  an  oath,  clearly  indicate  the  office  of 
notary  public.''     In  Indiana,  the  certificate  of  a  notary,  author- 
ized by  the  laws  of  his  own  State  to  administer  oaths,  is  by  statute 
made  presumptive  evidence.''    In  Kentucky,  a  notarial  certificate 
of  a  man  being  a  citizen  of  the  United  States,  such  as  is  usually 

»  But  if  it  is  shown  that  the  grantor  »  Thompson  v    New  England  Mort- 

did  actually  appear  before  an  officer  g^ge   Security  Co      110  Ala.   400,    18 

for   the   purpose  of   acknowledging   a  So.  315,  55  Am.  St.  Rep.  29^ 

conveyance  and  he  has  made  some  kind  «  Tacoma  Grocery  Co^  v    Draham,  8 

of  an  acknowledgment  the  certificate  Wash.  263,  36  P.  31,  40  Am.  St.  Rep. 

of  the  officer  in  relation  to  the  manner  907.                        t^     ,         o    Poll      rTT 

and  terms  and  as  to  the  fact  of  the  ^  Poabody   v.    Denton.    2    Gall.    (U. 

acknowledgment  would   be  conclusive  S.)   351.                                  t         r^        .> 

in    favor    of    the    purchaser    in    good  « Talcott    v.    Delaware    Ins.    Co.,    2 

faith  who  has  relied  upon  the  truth  of  Wash.  449 

the  certificate.     Le  Mesnager  v.  Ham-  Orr  v.  Lacy    4  McLean    243 

ilton,    101    Cal.   532.   35   P.    1054,   40  ^"Wilson  v.  Stewart,  1  Cranch   (U. 

Am. 'st.   Rep.   81;   .Johnston   v.   Wal-  S.C.C),  128.           _ 

lace,  53  Mis's.  331.  24  Am.  Rep.  G99.  ^.^"^Y'^y  ^-  ^^"?^"vl^  1%    rn 

*  Cheney  v.  Nathan.   110  Ala.   254,  '^Andrews  v.  Ohio,  &c.,  R.  R.   Co., 

20  So.  99,  55  Am.  St.  Rep.  2G.  14  Ind.  169. 


672  Evidence.  [Chap.  20 

obtained  by  persons  going  abroad,  is  not  evidence  of  his  having 
made  preparations  to  leave  the  country. ^^  And  in  an  action  to 
recovar  the  consideration  paid  for  a  United  States  treasury  note 
which  has  been  refused  payment,  the  notarial  protest  is  not  evi- 
dence of  the  reasons  for  such  refusal  by  the  treasurer  ;^*  and  gen- 
erally, notarial  certificates  of  fact's  happening  in  the  State,  have 
not  been  admitted  as  evidence,  unless  they  relate  to  bills  of  ex- 
change or  protests  in  relation  to  ships  and  vessels ;  and  in  the  lat- 
ter case  they  are  never  considered  as  evidence,  except  in  contra- 
diction to  evidence  given  in  regular  form  by  the  party  making 
the  protest. ^^  The  record  of  a  deceased  notary  is  admissible  for  the 
consideration  of  the  jury,  in  order  to  prove  a  notice,  although  the 
'entry  is  doubtful  as  to  the  meaning.  But  a  clerk  of  the  notary 
cannot  be  allowed  to  explain  what  the  notary  meant  by  the  entry.^® 
Thus,  the  notarial  certificate  of  a  deceased  notary,  purporting  on 
its  face  to  be  made  out  and  signed  several  months  after  the  jDrotest 
of  the  note,  is  admissible  in  evidence,  even  though  it  be  proved 
that  such  notarial  certificate  was  the  only  record  ever  kept  by  the 
notary  of  his  acts  in  the  premises."  Where  a  notary  public  pro- 
tested a  note  for  non-payment,  having  at  the  time  interest  therein, 
and  he  afterward  became  the  holder  of  the  note,  it  was  held,  in  an 
action  on  the  note  after  his  deceasie,  by  his  executor,  against  an 
indorser,  that  the  certificate  of  the  notary  was  competent  evidence 
for  the  plaintiff. ^^ 

Sec.  206.  Marine  Protests  and  Surveys. 

The  protest  of  one  of  the  sailors,  of  a  captured  vessel,  made  after 
his  return  to  the  United  States  at  the  first  port,  and  left  with  the 
brokers  of  the  insurers  to  fix  the  period  from  which  the  loss  was  to 
be  paid,  may  be  given  in  evidence  for  that  purpose,  but  it  is  not 
evidence  of  any  fact  contained  in  it.^  So  the  protest  of  some  of 
the  crew,  taken  abroad,  may  be  read  to  invalidate  their  evidence 
under  a  commission.^  But  the  protest  of  the  master  of  a  vessel  is 
a  mere  narration  of  the  bad  weather  he  has  met  with,  and  cannot 

"  Foster  V.  Davis,  1  Litt.  (Ky.)  71.  "McKnight  v.  Lewis,  5  Barb.    (N 

"Moore    v.    Worthington,    2    Duv.  Y.)   681. 

(Ky.)  307.  'Ruan  v.  Gardner,  1  Wash.  (U.  S.) 

"  Welsh  V.  Barrett,  1,5  Mass.  380.  14.5. 

"Duncan  V.  Watson,  10  Miss.  121.  =*  Winthrop    v.    Union    Ins.    Co.,    2 

"  Bootli  V.  Watson,  13  Miss.  295.  Wash.  7, 


Sec.  207.]  Public  Documents.  673 

be  received  as  evidence  for  himself  or  his  owners.'  But  the  cap- 
tain's certificate,  that  wages  were  due,  though  the  vessel  was  in 
port,  not  earning  freight,  is  sufficient  evidence  thereof,  though 
the  articles  were  not  produced.*  The  protest  of  a  master  of  a  ves- 
sel is  not  evidence,  per  se;  it  can  only  he  used  in  a  court  governed 
by  the  rules  of  the  common  law,  to  impeach  the  testimony  of  the 
master  himself,  or  as  incidentally  corroborative  of  the  log-book.^ 
An  alleged  copy  of  a  survey  not  made  by  order  of  a  court  of  ad- 
miralty, there  being  no  evidence  that  the  surveyors  acted  under 
the  sanction  of  an  oath,  is  not  admissible  in  evidence,  although 
stamped  by  the  American  consul  of  the  port  of  survey.^  But 
the  certificate  of  a  marine  surveyor  and  inspector,  made  in  the 
course  of  his  business,  is  competent  evidence  of  the  seaworthiness 
of  a  vessel  at  that  time,  if  supported  by  his  oath  that  he  examined 
the  vessel,  and  that  he  has  no  doubt  that  the  facts  stated  in  it  are 
true,  although  he  has  no  independent  recollection  of  those  facts. '^ 
A  surveyor's  report,  however,  upon  a  damaged  vessel,  stating  his 
opinion  concerning  the  repairs  necessary  to  be  made,  and  an  esti- 
mate of  their  cost,  is  not  admissible  in  evidence  in  an  action 
against  the  insurers,  where  the  only  evidence  to  corroborate  such 
report  is  the  testimony  of  the  surveyor  himself  that  the  condition 
of  the  ^hip  appeared  fully  in  the  report.^  A  protest  is  not  evidence 
to  show  that  a  captain  is  not  chargeable  with  the  loss  of  cargo.® 

Sec.  207.  Consular  Certificates. 

The  certificate  of  the  American  consul  at  a  foregn  port,  under 
his  seal  of  office,  that  the  ship's  papers  were  lodged  with  him, 
agreeably  to  the  requisitions  of  the  embargo  law,  is  good  evidence 
of  that  fact,  but  not  of  other  facts  stated  in  it.^  Indeed,  the  rule 
may  be  said  to  be  invariable,  that  the  certificate  of  any  officer,  is 
only  good  as  evidence,  as  to  such  matters  and  facts  as  he  is  by  law 

•The   May    Queen,    1    Newb.    Adm.  '^  Perkins  v.  Augusta  Ins.,  &c.,  Co.. 

464.  10  Gray    (Mass.),  312. 

*  Minors  v.  The  Mary,  Bee,  119.  *  Howard  v.  Orient,  &c.,  Ins.  Co.,  2 

"Straffin       v.       Newell,       T.       P.  Robt.   (N.  Y.)   539. 

Charlt.   (Ga.)    172;  Lamalere  v.  Caze,  'Cunningham   v.    Butler,    2    Hayw. 

1  Wash.    (U.  S.)   413;     Hempstead  v.  (N.  C.)  392. 

Bird,  1  Day   (Conn.),  89.  ^United      States     v.      Mitchell,     2 

"Stephenson     v.     Piscataqua     Fire,  Wash.    (U.  S.)   478. 

&c.,  Ins.  Co.,  54  Me.  55.  1 

43 


6T-i      '  Evidence.  [Chap.  20 

required  to  keep  a  record  or  give  a  certificate  of.  His  certificate 
is  not  evidence  of  acts  "svliich  are  not  official  nor  within  his  personal 
knowledge,  but  such  a  certificate  is  competent  to  remit  a  penalty 
due  the  United  States.^  An  American  consul  at  a  foreign  port  is 
without  authority  to  make  an  authenticated  copy  of  a  draft  drawn 
here,  by  the  owner  of  a  ship,  upon  the  consignees  of  such  ship  at- 
such  foreign  port,^  and  his  certificate  of  the  death  of  an  individual 
abroad  is  not  sufficient  proof  of  that  fact.^ 

Sec.  208.  Certificates  by  Appraisers,  Inspectors,  Etc. 

Where  personal  property  was  leas'ed  to  the  defendant,  a  written 
appraisal  of  the  whole  of  it  by  persons  appointed  to  appraise  a 
portion  of  it,  is  not  admissible  evidence  in  an  action  against  him, 
though  it  was  agreed  between  the  parties  that  the  whole  should  be 
appraised  f  but  when  such  a  certificate  is  admissible  as  evidence 
of  a  fact  stated  in  it,  the  person  making  it  cannot  contradict  it. 
Thus",  it  has  been  held  not  competent  for  a  surveyor  of  lumber, 
whose  survey  has  been  returned  and  recorded  as  provided  in  the 
statute  regulating  the  survey  of  lumber,  to  show,  by  his  testimony, 
that  the  lumber  surveyed  by  him  was  of  a  different  quality  from 
tJiat  stated  in  his  survey. -^^ 

Inventories  of  the  estates  of  persons  deceased  are  admissible 
as  prima  facie  evidence,  for  or  against  strangers,  for  many  pur- 
poses; being  made  by  persons  appointed  under  authority  of  law, 
to  investigate  a  matter  of  fact  of  general  interest,  under  oath,  and 
to  make  a  return  or  report  upon  the  subject,  to  be  preserved  of 
record." 

The  official  certificate  or  stamp  of  a  government  inspector  is 
not  conclusive  evidence  that  the  article  stamped  is  of  the  quality 
denoted  by  the  stamp ;  it  may  be  shown  to  be  of  a  different  qual- 
ity. ^^  But  when  the  statute  declares  that  the  certificate  of  a  certain 
ofiicer  shall  be  evidence  of  certain  facts,  parol  evidence  is  inad- 
missible, both  under  the  statute  and  on  general  principles. ^^ 

'Brown      v.      The      Independence,  '"Whitman  v.  Freese.   23  Me.   212. 

Crabbe  (U.  S.),  54.  "  Seavey  v.   Seavey.  37   N.  H.   125. 

'Williams    v.    Scescent,     &c.,     Ins.  '=  Clintsman    \.    Northrop,    8    Cow. 

Co..  15  La.  Ann.  651.  (N.  Y.)   45. 

Mlorton  V.  Barrett,  19  Me.  109.  "  Hammondsport     &     Bath     Plank 

'Great  Pond  Co.  v.  Buzzell,  39  Me.  Road   Co.   v.   Brundage,   13   How.   Pr. 

173.  (N.  Y.)   448. 


Sec.  209.]  Public  Documents.  675, 

When,  from  the  omission  of  the  signature  or  any  other  cause, 
the  authenticity  of  an  alleged  certificate  of  a  certain  officer  is  not 
manifest  and  clear,  it  becomes  a  question  of  fact  to  be  found  like 
any  other." 

Sec.  209.  Certificates  by  Land  Officers. 

A  certificate  from  the  land  office  of  the  United  States  is  to  be 
taken  as  genuine,  and  what  it  purports  to  be,  until  the  contrary 
appears.^  But  the  certificate  of  a  land  officer  cannot  be  evidence  of 
any  fact  unless  expressly  made  so  by  statute  of  the  State  or  of 
congress.^  The  certificate  of  the  register  of  the  United  States  land 
office  is  competent  evidence  to  show  title  in  land,  and  needs  no 
authentication.^  And  the  s'ame  is  true  as  to  a  certificate  of  the  sur- 
veyor-general going  to  show  that  a  wrong  name  was  inserted  in  a 
State  granf  Indeed  the  official  certificate  of  the  register  of  a 
land  office  to  any  act  on  record  in  his  office  is  competent  evidence 
of  that  fact.^  And  the  certificate  of  a  register  and  receiver  of 
any  land  office  in  the  Unted  States  to  any  fact  or  matter  of  record 
in  his  office,  is  competent  evidence  to  prove  such  f act^  The  recor- 
der's certificate  is  competent  evidence  to  show  who  entered  land 
in  dispute.'^  A  certificate  of  a  register  of  deeds  that  he  had  ex- 
amined the  records  of  his  office  and  found  on  record  a  plat  of  a  part 
of  a  certain  city,  and  that  there  was  no  other  plat  on  file  or  of 
record  relating  to  s'aid  city  that  he  could  find,  is  inadmissible.  In 
general,  a  certificate  of  mere  matter  of  fact  not  coupled  with  any 
matter  of  law  is  not  receivable  in  evidence.^  If,  however,  lands 
are  stricken  off  to  the  commonwealth  for  non-payment  of  taxes, 
and  redeemed  by  their  payment  within  the  time  limited  by  law, 
the  register's  receipt  is  competent  to  prove  the  redemption.^  In 
an  action  to  enforce  a  judicial  mortgage,  the  certificate  of  the  re- 
corder that  the  judgment  has  been  recorded  in  his  office,  has  the 
same  effect  as  evidence  when  drawn  upon  a  duly  certified  copy 
of  the  judgment  as  it  would  have  on  a  separate  and  distinct  paper ; 
but  the  recorder's  certificate  is  only  prima  facie  evidence  of  the 

"  Brink  v.  Spauling,  41   Vt.  96.  '  Delanney  v.  Burnett,  9  111.  454. 

^Cox  V.  Jones,  1  Stew.    (Ala.)   370.  'York  v.  Sheldon,  18  Iowa,  569. 

'Mayo  V.  Johnson,  4  Ark.  613.  '  Bemis  v.  Becker,  1  Kan.  226. 

'Floyd  V.  Ricks,  14  Ark.  286.  "Taylor  v.  Steele,   1   A.  K.  Marsb. 

*  Brooking  V.  Dearmond,  27  Ga.  5S.  (Ky.)   315. 
"Ross  V.  Reddick,  2  111.  73. 


676  Evidence.  [Chap.  20 


10 


facts  stated  in  it,  and  if  untrue  may  be  contradicted  by  proof 
In  an  action  for  damages  occasioned  by  a  mill-dam,  to  land  held 
under  the  pre-emption  law,  the  certificate  of  the  register  of  the 
land  office  in  which  the  land  lies  is  admissible  to  prove  the  filing 
of  the  declaratory  statement  upon  th^  land  in  question  ;^^  but  the 
certificate  of  the  register  of  the  land  office  that  a  map  is  a  correct 
representation  of  a  part  of  a  township,  is  not  sufficient  to  make  it 
evidence  under  a  statute  making  copies  of  records  evidence;  it 
should  certify  that  it  is  a  true  copy  of  the  original,  and  that  the 
original  is  of  record  in  the  office. ^^  A  certificate  of  the  right  of 
pre-emption  is  prima  facie  evidence  of  the  title  against  a  New 
Madrid  certificate  and  survey,^^  and  a  certificate  of  the  secretary 
of  the  land  office,  authenticating  an  entry  which  he  is  not  author- 
ized by  statute  to  authenticate,  is  not  admissible  in  evidence."  So 
a  certificate  of  the  secretary  of  the  land  office  that  he  had  searched 
for  a  certain  warrant  and  could  not  find  it,  is  admissible  in  evi- 
dence. ^^  That  there  has  been  a  conveyance  between  two  parties  or 
that  a  deed  purporting  to  convey  has  been  filed  at  his  office,  cannot 
be  proved  by  the  certificate  of  the  commissioner  of  the  general  land 
office.^^ 

Sec.  210.  Surveys  of  Land. 

A  copy  of  a  warrant  of  survey,  under  the  surveyor-general'g 
hand,  and  containing  his  directions  to  the  deputy  sheriff  to  make 
the  survey,  is  admissible  in  evidence,^  and  the  official  certificate 
of  survey,  returned  by  a  legal  sworn  surveyor,  in  Virginia,  cannot 
be  invalidated  by  a  particular  fact,  tending  to  show  an  impossibil- 
ity that  the  survey  could  have  been  made  in  the  time  intervening 
between  the  date  of  the  entry  and  the  date  of  the  certificate  of  sur- 
vey.^ But  the  fact  that  a  copy  of  a  certificate  of  survey  was  deliv- 
ered by  the  Spanish  authorities  of  ISTew  Orleans,  in  1803,  to  a  per- 
son applying  for  documentary  proofs  of  title  to  the  land,  does  not 

"Tavlor    v.    Pearce,    15    La.    Ann.  "  Weidman    v.    Kohr,    4    S.    &    P. 

564.      '  (Penn.)    174. 

"  Dorman  v.  Ames,  12  3\Iinn.  451.  '*  Smithwick    v.    Andrews,    24    Tex. 

"Doe  V.   Kinjr.   4   Miss.    (3   How.)  488. 

125.  'Hewes   v.   M'Dowell,    1    Dall.    (U. 

'=  Rector  v.  Welch,  1  Mo.  334.  S.)   5. 

"Garwood     v.     Dennis,     4     Binn.  'Pollard  v.  Dwight.  4   Cranch    (U. 

(Penn.)   314.  S.),  421. 


Sec.  210.]  Public  Documents.  677 

prevent  the  authenticity  of  tlie  certificate  from  being  impeaclied.^ 
The  certificate  of  a  county  surveyor  is  no  evidence  of  possession, 
except  vi^here  the  route  of  a  watercourse  making  the  boundary  of  a 
tract  of  land  is  so  changed  as  to  leave  the  tract  or  part  of  it  on  the 
opposite  side  from  that  on  which  it  was  at  the  time  of  the  survey, 
and  the  surveyor  is  called  on  to  make  an  accurate  soirvey  of  the 
part  of  the  tract  cut  off.^  A  coast  survey  chart  is  admissible  as  an 
official  record  to  prove  the  existence  of  a  private  way.^  The  cer- 
tificate of  the  deputy  surveyor  of  the  county  where  land  lies,  is 
pi-iina  facie  evidence  that  a  survey  was  made  at  the  time  it  pur- 
ports to  have  been  made.^  A  surveyor's  report  is  evidence  of  the 
present  existence  of  object's  found  upon  the  land ;  but  it  may  be 
impeached  or  falsified  by  other  evidence.  A  coincidenos  between 
the  objects  mentioned  in  a  grant  or  deed,  and  those  reported  by  the 
surveyor,  may  be  satisfactory  evidence  of  the  boundary  of  the 
land  in  dispute.'^  Where  a  surveyor's  report  is  to  be  substantive 
evidence,  in  a  suit  in  ejectment,  all  the  defendants  who  are  of  full 
age  ought  to  have  notice  of  the  time  of  making  it;  and  a  tempor- 
ary absence  of  one  defendant  will  not  excuse  the  want  of  notice.* 
A  surveyor's  certificate,  on  the  recital  of  its  contents  in  a  patent, 
cannot  be  eontradicted  by  parol  evidence ;  evidence,  even  by  the 
surveyor  himself,  to  show  that  the  survey  was  never  made,  or  was 
made  at  a  diiferent  time,  is  inadmissible.^  Notes  or  memoranda  of 
a  surveyor  who  is  dead,  indorsed  on  his  certificate  of  survey,  are, 
on  proof  of  his  handwriting,  competent  evidence  to  show  the  origi- 
nal running  of  the  land  to  which  they  relate,  but  not  to  elongate,  or 
shorten,  or  in  any  manner  to  affect  the  position  of  the  land  as 
described  in  the  grant. ^'^  Where,  in  a  suit  for  the  recovery  of 
lands,  a  survey  of  the  premises  was  ordered,  and  the  surveyor's 
certificate  was  objected  to  as  not  identifying  the  lands  surveyed 
with  those  sued  for,  it  was  held  that  a  general  description  in  the 
certificate  of  the  bounds  of  the  whole,  which  was  specific  enough  to 
enable  witnesses  to  identify  the  land,  was  sufficient  to  make  the  oer- 

'  United    States    v.    King,    3    How.  ^  Heffineton     v.      White,      1       Bibb 

(U.  S.)   773.  (Ky.),  115. 

*  Dillon  V.  Mattox,  21  Ga.  113.  *Ewing  v.   Savary,   3    Bibb    (Ky.i, 

=  Clark  V.  Hull,   184  Mass.   164,   68  235. 
N.  E.  R.  60.  »Cain  v.  Flynn,  4  Dana  (Ky.),  490 

"Hoy   V.    M'Murry,    1    Litt.    (Ky.)  ^«  Snavely  v.  M'Pherson,  5  H.  &  J. 

364.  (Md.)    150. 


678  Evidence.  [Chap.  20 

tificate  admissible  in  evidence.^^  A  survey  in  wliicli  tliere  is  a 
clerical  error  is  good  evidence.  So,  also,  is  a  deed,  signed  by  a 
part  of  the  grantors,  and  not  recorded  ;^^  but  a  copy  of  a  survey, 
not  returned  nor  verified  by  the  surveyor,  cannot  be  read  In  evi- 
dence ;^^  nor  is  a  plat  of  a  survey,  found  among  the  papers  of  an 
assistant,  not  signed  nor  returned  by  the  deputy  surveyor.^*  A 
survey  is  admissible  though  it  does  not  recite  the  authority  by 
■which  it  is  made  ;^^  and  the  field-notes  of  a  deputy  surveyor,  show- 
ing a  survey  for  A.  at  a  particular  time;  a  warrant  in  B.'s  name 
calling  for  A.,  as  adjoining;  and  an  old  draft  of  a  survey,  found  in 
the  surveyor's  ofiice,  indorsed  in  his  handw^riting,  were  admitted 
ia  evidence  to  support  a  title."  A  return  of  survey  into  the  sur- 
veyor-general's ofiice,  and  a  lapse  of  twenty  years  afterward  with- 
out any  attempt  made  during  that  time  to  take  exception  or  objec- 
tion to  it,  is  conclusive  evidence  that  it  was  regularly  made." 

Sec.  211.  United  States  Departmental  Records. 

The  acts  of  congress,  making  transcripts  from  the  departments 
at  Washington  evidence  against  public  debtors,  though  in  deroga- 
tion of  the  coiomon  law,  are  valid,  and  the  transcripts  prima  facie 
proof;  but  the  mode  prescribed  by  law  for  authenticating  thsm 
must  be  strictly  pursued.^  Certified  transcripts  of  the  accounts 
kept  at  the  treasury  department  are  made  evidence  of  the  facts 
entered  and  the  balance  due,  in  actions  between  the  government 
and  its  officer  and  their  sureties.^  The  provision  of  an  act  of  con- 
gress, declaring  that  all  copies  of  bonds,  contracts  or  other  papers, 
relating  to  or  connected  with  the  settlement  of  any  account  between 
the  United  States  and  an  individual,  when  certified  by  the  register 
TO  be  true  copies  of  the  originals  on  file,  and  authenticated  imder 
the  seal  of  the  treasury  department,  shall  have  equal  validity  and 

"Spears  v.  Burton.  31  Miss.  547.  "Nieman  v.   Ward,    1   Watts  &   S. 

"Brown       v.       Long,       1       Yeatos  (Penn.)    68. 

(Ppnn  )     162  'United    States   v.   Harrill,    1    Mc- 

"  Davis      V.       White,      3       Yeatea  All.    (U.   S.   C.   C.)    243;      Oilman  v. 

(Pemi.),  587.  Riopelle,    18   Mich.    145;     Crowell    v. 

"M'Kenzie      v.      Crow,     4     Yeates  Hopkinton,  45  N.  H.  9. 

(Penn.),  428.  MValton      v.      United      States,      H 

"Sproul     V.     Plumstead,     4      Binn.  Wheat.- (U.  S.)   651;   Bruce  v.  United 

(Penn.)    189.  States,  17  How.   (U.  S.)    437;  Unite^l 

"Boyle      V.      Johnston,     0      Binn.  States   v.   Patterson,  Gilp.    (U.  S.   C. 

(Penn.)    125.  C.)    44;   Postmaster-Gen.   v.   Rice,  id. 

554. 


Sees.  212  213.]  Public  Documents.  6Y9 

be  entitled  to  equal  credit  with  tlie  originals,  is  not  restricted  to 
cases  where  suits  are  commenced  under  the  authority  given  by 
section  1  of  the  act,  but  applies  to  all  cases  where  the  evidence 
is  required.^  The  third  auditor  is  not  authorized  to  authenticate 
copies  of  bonds  and  other  papers.  His  power,  under  the  statute, 
extends  only  to  "  transcripts  from  the  books  and  proceedings  of 
the  treasury  in  regard  to  the  accounts  of  the  war  department." 
Copies  of  bonds  must  still  be  certified  by  the  register,  and  authen- 
ticated under  the  seal  of  the  department.^ 

Sec.  212.  Weather  Reports. 

On  the  issue  of  the  condition  of  the  weather  during  a  certain 
period  one  who  was  in  charge  of  the  United  States  weather  bureau 
may  read  in  evidence  the  records  of  his  office  as  to  the  weather  dur- 
ing the  period  involved,'  even  when  made  by  the  predecessor  of  the 
witness,  as  they  are  presumed  to  be  correct.'  So  official  reports  are 
admissible  as  to  the  weather  ten  miles  away  from  the  point  of 
observation,  together  with  evidence  that  weather  reports  would, 
as  a  rule,  be  correct  for  the  surrounding  country.^  Weather  reports 
kept  by  railroad  agents  at  a  voluntary  observation  station  of  the 
department  of  agriculture  are  not  admissible  in  the  absence  of  the 
clerk  who  made  them.  Their  preservation  was  not  exacted  in  the 
performance  of  any  duty  owing  to  the  railroad  company  or  to  the 
government.* 

Sec.  213.  Land  Office  Papers  and  Records. 

A  transcript  from  the  books  or  papers  on  file  in  the  general  land 
office,  or  to  the  Indian  bureau  of  the  department  of  the  interior, 

"United    States    v.    Lent,    1    Paine  eighteen    years,    which    records    were 

(U    S    C    C  )    417  ^^P^   Dartly  by   himself   and   in   part 

"United  '  States  v.  Griffith,  2  by  his  predecessor.  He  was  permit- 
Cranch  (U  S  C.  C),  366;  Wickliff  ted  to  state  the  average  rainfall  for 
V  Hill  3  Litt.  (Kv.)  330.  the  past  eighteen  years  and  a  so  the 
■^  Anderson  v.  Hilker  (Wash..  1005).  rainfall  on  a  certain  day,  on  the  tlie- 
80  Pac  848  Weather  records  kept  in  ory  that  government  records  are  pro- 
State  insane  asylum  held  admissible,  sunied  to  be  correct  Scott  v.  Astoria 
see  Armond  v.  Neasmith,  32  Mich.  R.  Co.,  43  Oregon,  26,  72  Pac.  594 
231  »Mears  v.  New  loik,  etc.,  R.  Co., 

*An   employee   of   the   weather   bu-  75  Conn.  171    52  A.  610. 

reau  may  testify  as   to  the  result  of  *  Monarch   Mfg    Co.   v-   O^^^^a     O. 

his  examination  of  the  government  re  B.  &  S.  Ry.  Co.   (Iowa,  190o),  103  N. 

ports    of    the    rainfall    for    the    past  W.  493. 


6g0  Evidence.  [Chap.  20 

if  properly  certified,  under  tlis  seal  of  the  department,  by  the 
"  acting  commissioner,"  is  admissible  in  evidence/  So  the  sur- 
veyor-general's certificate  that  a  copy  of  a  decree  of  confirmation, 
by  the  United  States  board  of  land  commissioners,  is  a  correct  copy 
thereof,  "  as  the  same  is  on  file,"  etc.,  is  sufficient  to  admit  the 
copy  in  evidence  in  a  suit  in  ejectment.^  A  certified  copy  of  a 
patent  for  lands  issued  by  ths  United  States  is  admissible  in  evi- 
dence on  common-law  principles.  Acts  of  public  officers  in  the 
execution  of  the  laws,  who  are  required  to  make  and  keep  public 
records  of  their  surveys,  sales  and  conveyances,  may  be  shown  by 
the  public  records  kept  and  made  according  to  law,  or  by  copies 
thereof,  duly  certified  by  the  proper  officer  under  the  seal  of  his 
office.^ 

So  sworn  copies  of  affidavits  on  file  in  the  office  of  the  register 
of  a  land  office,  respecting  a  pre-exemption  right,  are  admissible  as 
evidence  in  cases  in  which  the  originals,  could  they  be  procured, 
would  be  evidence.*  A  letter  of  the  commissioner  of  the  lanH  office, 
affecting  the  title  to  lands  entered  from  the  United  States  govern- 
ment, may  be  proved  by  an  authenticated  copy.^  The  exemplifica- 
tion of  a  patent  certified  by  the  commissioner  of  the  general  land 
office,  is  admissible  in  evidence  without  proof  of  the  loss  of  the 
original.^ 

Written  statements  of  a  register  of  the  United  States  land  office 
and  the  State  land  commissioner  as  to  what  the  records  in  their 
offices  show,  are  not  admissible  for  any  purpose.  The  proper  evi- 
dence of  these  facts  in  the  absence  of  the  original,  is  a  copy  of  the 
record  duly  authenticated.''  The  report  of  the  surveyor-general  to 
the  commissioner  of  the  general  land  office,  detailing  the  history 
of  his  operations  in  making  a  survey,  is  inadmissible  in  evidence 
to  prove  the  location  of  the  land  surveyed.^  So  an  exemplification 
of  any  record  or  paper  required  by  law  to  be  filed  in  the  lanid 
office,  is,  as  evidence,  of  equal  authority  with  the  original." 

'  Stephens    v.    Westwood,    25    Al.i.  '  Kellev  v.  Laconia   Levee  District 

71G.  (Ark.,  1905),  85  S.  W.  249. 

» Young  V.   Emerson,    18   Cal.   416;  » Clark  v.  Hammerle,  36  Mo.  620. 

Clark  V.  Hammerle.  36  Mo.  620.  "Lee  v.  Getty,  26  111.  76;     Harris 

'Lane  v.   Bommelmann,   17   111.  05.  v.  Dove,  4  Blackf.   (Ind.)'  369;   Smith 

*  Smith  V.  Mosier,  5  Blackf.  (Ind.)  v.  Mosier,  5  id.  51;  Stephenson  v. 
51.  Doe,  C  id.   508;   Harden  v.  Ho-yo-po- 

"  Davis  V.  Freeland,  32  Miss.  645.  nubby,  27  Miss.  567. 

*  Barton  v.  Murrain.  27  Mo.  235. 


Sees.  214,  215.]  Public  Documents.  681 

Sec.  214.  Custom-house  Records. 

A  copy  of  a  manifest,  recorded  at  a  custom-house,  and  examined, 
is  good  evidence.^  So  a  copy  of  a  clearance  at  another  port  in  the 
United  States,  properly  certified  by  the  deputy  collector  under 
sieal  as  a  true  copy  of  the  original,  is  competent  evidence  to  estab- 
lish the  date  of  the  clearance,  when  accompanied  by  testimony  that 
the  person  certifying  was  at  the  time  acting  deputy  collector,  that 
his  signature  was  genuine,  that  the  seal  was  the  custom-house  seal, 
and  that  the  original  had  been  on  file  in  the  custom-house  of  the 
port  for  which  the  vessel  cleared,  but  could  not  be  found  after  due 
search.^ 

The  enrollment  of  a  steamboat  is  a  record,  of  which  the  collec- 
tor of  customs!  is  the  custodian,  under  the  acts  of  congress,  and  a 
copy  thereof,  duly  certified  by  the  collector,  is  competent  evidence ; 
as  is  also  such  a  copy  of  the  act  of  sale  recorded  under  the  act  of 
congress  of  1850.^  A  copy  of  any  enrollment,  certified  to  be  such 
by  the  collector,  is  not  admissible  evidence,  he  not  being  author- 
ized to  grant  copies  generally.'* 

Sec.  215.  State  Land  Office  Papers. 

On  the  question  between  the  State  and  adverse  claimants  whether 
certain  lands  are  canal  lands,  the  findings,  maps,  plans  and  surveys 
made  by  tlie  canal  commissioners  are  not  admissible  in  behalf  of  the 
State  as  made  ex  parte  with  no  opportunity  to  the  landowner  for  a 
hearing.^  A  paper,  purporting  to  be  ''  a  certified  extract  from  the 
general  draft  of  certain  districts,  as  framed  and  approved  by  the 
surveyor-general,  remaining  in  his  ofiice,"  under  the  seal  of  the 
office,  is  not  evidence ;  it  being  only  an  extract,  and  not  being  a 
copy  of  an  office  paper  ;^  nor  can  an  affidavit  made  in  connection 
with  a  warrant  of  survey,  and  certified  as  an  office  paper  in  the 
land  office,  be  given  in  evidence  ;^  nor  is  the  certificate  of  the  regis- 
ter of  the  land  office,  appended  to  a  transcript  from  the  books  of  his 
office,  that  the  same  is  a  true  copy,  of  itself  testimony  before  the 
jury ;  the  scope  of  the  certificate  being  merely  to  make  the  copies 

'  United    States   v.    Johns.    4   Dall.  ®  State  v.   Cincinnati  Tin   &  Japan 

(U.  S.)   412.  Co.,  66  Ohio,  182.  64  N.  E.  R.  68. 

*  White  V.  Kearney.  2  La.  Ann.  639,  'Griffith   v.    Tunckhouser,  Pet.   (U. 
'Sampson    v.    Noble,    14    La.    Ann.  S.  C.  C.)  418. 

347.  'Lanning  v.   Dolph,  4  Wash.  624. 

*  Dyer  v.  Snow,  47  Me.  254. 


882  Evidence.  [Chap.  20 

of  the  entries  evidence.*  But  generally,  duly  authenticated  copies 
from  the  State  land  office  are  admissible.^  A  deed  of  a  grantee  of 
the  State  cannot  be  considered  as  belonging  to  the  archives  of  the 
State,  so  as  to  be  proved  bv  a  copy  made  by  the  land  agent.®  A 
copy  of  a  certificate  of  entry  by  a  register  will  not  be  received  in 
evidence  where  it  appears  that  the  original  is  on  the  files  in  the 
general  land  office  f  and  Avhere  a  certified  copy  of  the  original  cer- 
tificate and  survey  from  the  land  office  were  offered  in  evidence  to 
give  color  to  title,  the  copy  was  rejected  because  the  certificate  was 
i\ot  accompanied  by  evidence  of  its  having  been  recommended  as 
genuine.^  A  hipotica  especial  (a  security  in  the  nature  of  a  mort- 
gage) and  its  transfer,  are  not  papers  pertaining  to  the  records  of 
the  general  land  office,  nor  archives  of  the  office,  and  therefore 
copies  of  them  certified  by  the  commissioner  of  the  land  office  are 
inadmissible  in  evidence.®  Tax  lists  are  inadmissible  to  prove 
the  value  of  real  estate  as  they  are  "  res  inter  alios  acta."^'^ 

Sec.  216.  State  Grants. 

Certified  copies  of  the  surveyor-general's  grants  are  inadmissi- 
ble, unless  a  sufficient  basis  be  laid  for  their  introduction.^^  In 
North  Carolina,  patents  or  grants  from  the  State,  being  recorded 
in  the  office  of  the  secretary  of  State,  copies  of  them,  obtained  from 
that  office,  may  be  given  in  evidence  without  accounting  for  the 
originals,  by  all  persons  except  the  patentees  or  grantees  them- 
selves, or  those  claiming  under  them,  who  would  be  entitled  to  the 
possession  of  the  originals.^^  A  copy  of  a  grant  from  the  register's 
office,  and  one  from  the  office  of  the  secretary  of  State,  are  boli 
secondary  evidence ;  and  where  secondary  evidence  is  admissible, 
it  is  no  objection  to  the  copy  from  the  register's  office  that  one 

*  Johnson  v.  Mays,  8  Ark.  386.  Lively,  4  Gratt.    (Va.)    73;     Ward  v. 

'Franklin     v.     Woodland,     14     La.  Moorey,  1  Wash.  T.  122. 

Ann.  188;   Finley  v.  WoodrufT,  8  Ark.  "  Hamniatt  v.  Emerson,  27  Me.  308. 

328;    Sessions   v.   Reynolds,    15   Miss.  'Doe  v.   M'Caleb.  3  Miss.   750. 

130;      Wray    v.    Ho-ya-pa-nubby,    18  *  Ryan  v.  Jackson,   11   Tex.  391. 

Miss.   452;      Harper  v.   Farmers,  &c..  "  Mapes  v.   Leal,  27  Tex    345 

Bank,   7   W.   &  S.    (Penn.)    204;   Oli-  ^"Suffolk  &  C.  Ry.  Co.  v.  West  End 

phant   V.    Ferrcn,    1    Watts    (Penn.).  Land    &    Improvement    Co.     (N.    C., 

57;   Grant  v.  Levan,  4  Penn.  St.  393;  1904),  49  S.  E.  350. 

Houston  V.  Perry.  3  Tex.  390 ;   Mason  "  Hensley  v.  Tarpey.  7  Cal.  288. 

V.  McLaughlin,  16  Tex.   24;   Dikes   v.  '=  Candler   v.    Lundsford.  4  D.  &  D 

Miller,  25  Tex.  Supp.  281;   Poilard  v.  L.    (N.  C.)    407. 


Si3c.  217.]  Public  Documents.  683 

from  the  office  of  the  secretary  would  be  better  evidence.^'  Gen- 
erally, it  may  be  said  that  a  copy  of  a  grant  is  not  admissible  m 
evidence,  without  first  accounting  for  the  non-production  of  the 
original.^^  Office  copies  of  gi-ants,  certified  by  the  secretary  of 
State  and  surveyor-general  or  other  deputies,  are  made  admissible 
in  evidence,  in  South  Caroline,  by  statute.^^  Where  tlie  commis- 
sioner of  the  general  land  office  gave  a  certified  copy  of  a  grant, 
under  which  the  plaintiff  claimed,  and  annexed  to  it  what  pur- 
ported to  be  a  release  by  the  original  grantee  to  the  government 
of  the  genuineness  of  which  release  there  was  no  proof,  it  was  held 
that  tbe  plaintiff  was  not  bound  to  read  such  release  with  the  rest 
of  the  document.^^ 

Sec.  217.  State  Records. 

A  certificate  from  the  executive  department  is  admissible  in 
evidence  if  it  gives  substantially  the  contents,  or  a  part  of  the  con- 
tents, of  the  thing  to  which  it  relates.  It  is  not  necessary  that  it 
should  give  a  copy  of  the  thing  to  which  it  relates.''  A  transcript 
from  th^'e  books  of  the  treasurer  of  tlie  State  is  competent  evidence 
to  show  that  a  State  tax  has  been  paid.'«  In  Ohio,  by  statute,  cer- 
tified copies  of  the  files  of  the  auditor  of  State  are  made  evidence, 
but  it  is  held  that  this  authorizes  their  admission  only  when  the 
originals  would  be  evidence.'^ 

In  an  action  by  a  sub-contractor  against  a  contractor,  to  recover 
for  work  done  on  the  public  works,  sworn  copies  of  estimates  from 
the  office  of  the  resident  engineer  are  competent  evidence.''  So  a 
certified  copy  of  a  contract  for  constructing  a  section  of  the  Penn- 
-  sylvania  canal,  from  the  auditor's  office,  is  admissilale  without  the 
subscribing  witnesses.^'  A  certified  copy  of  the  executive  min- 
utes, is  no^t  evidence  of  a  witness's  pardon.  The  pardon  or  a  cer- 
tified copy  is  necessary.^'  An  undated,  unsigned  memorandum  on 
the  back  of  an  envelope  from  the  fire  marshal's  office  may  be  identi- 

>«  Osborne  v   Ballew,  7  Ired.  L.   (N.  "Dikes  v.  Miller,  11  Tex    98 

usDorne  v.  ucmc    ,  ^  jjp„jerson  v.  Hackney,  16  Ga.  521. 

^•^   '*^^-  TVT.TT       1  -Rvo^T    r<=;  "Hodo-don   V.    Wight,    36   Me.    326. 

"Maloolmson  v.  M'Kee,  1  Biev.   (S.  ^^te   v^   Wells.^l    Ohio,    261.  ' 

^•Ll^l^-    „n  ,.    n«,.lUp    1  MeCord   (S.  -Lyon  v.  MeCadden,   15  Ohio.  551 


^•'  ^^        r^     ^■^„    1  -MfoCnrA    (S,  ^''Lvon  v.  MeUadden,   lo  unio,  ooi. 

c/, ."srSolM '"  Hjlnl°°  »   Bay       ,"  Connor  v.  Standard  Pub.  Co.,  183 

(S'C),   487;      Gourdine   v.   Bar—"         I'Par.n 
Harp.    (S.  C.)    221;   S.  P.  Linnin 
Crawford,  2  Bailey   (S.  C),  290. 


C),   534;   Rochell   v.    Moimes,    ^    r.<^y  0.7 

£^%'^.i  ^^'^.  U^'^-       '"coi'v'Jo.  .0  Penn.  St.  375. 


684  Evidence.  '    [Cliap.  20 

fied  as  his  official  record  by  the  stenographer's  testimony  to  that 
effect,  although  it  did  not  appear  in  whose  handwriting  it  was.^^ 

Sec.  218.  Verdicts  and  Interlocutory  Matters. 

A  verdict  upon  w-hich  no  judgment  has  been  rendered  is  not  ad- 
missible in  evidence/  nor  is  one  which  has  been  set  aside  for  any 
cause.^  Of  course  verdicts  are  only  binding  upon  parties  and  their 
privies/  but  as  between  them,  after  judgment  thereon,  they  are 
conclusive  in  any  subsequent  suit  involving  the'  same  subject- 
matter/  Where  fraud  is  charged  in  an  action  for  money  had 
and  received  evidence  of  the  acquittal  of  the  defendant  in  a  crim- 
inal prosecution  based  upon  the  same  fraud  is  incompetent.^ 

By  special  agreement  between  the  parties  to  several  suits  in- 
volving tlie  same  questions,  a  verdict  in  one  action  may  conclude 
all,  as  when  several  underwriters  against  whom  separate  actions 
Avere  brought  for  the  same  loss  agreed  to  abide  by  the  verdict  in 
one,  it  was  held  that  the  verdict  in  that  action  was  admissible  as 
evidence  in  the  others.^ 

Formerly  in  England  the  ofBce  of  coroner  was  a  judicial  office  of 
great  dignity  and  his  court  is  in  England  still  a  court  of  record. 
But  in  this  country  a  coroner'si  court  is  not  ordinarily  a  court  of 
record  and  the  coroner's  verdict  is  not  admissible  in  evidence  even 
though  the  statutes  provide  that  it  be  filed  in  court,'  although  the 
coroner's  record  may  be  used  to  prove  admissions  of  parties.^ 

-'Connor  v.  Standard  Pub.  Co.,  183  71  Pac.  73,  95  Am.  St.  Kep.  752,  and 

Mass.  474,  67  N.  E.  R.  596.  note  763.  (As  to  testimony  before  cor- 

'  Dougherty    v.    Lehigh   Coal,   etc.,  oner  see  Knights  Templar  &  Masons' 

Co..  202  Pa.  State,  635,  52  A.  18.  90  Life   Indemnity    Co.   v.    Crayton,   20f> 

Am.  St.  Rep.  660;  McReady  v.  Rogers,  111.  550.  70  N.  E.  R.  1066;  Edwards  m. 

1  Neb.  124,  93  Am.  Dec.  333;  Donald-  Grimbel.   202   Penn.   30,  51   A.   357)  ; 

son      V.      Jude,       2       Bibb.       (Ky.)  Chambers    v.    Modern    Woodmen    of 

57;    Hinckle   v.    Carruth,    Tread.    (S.  America.    (S.    D.,    1904),    99    N.    W. 

C.)    471;    United   States   v.   Addison,  1107;  Boehme  v.  Southern  Camp,  etc., 

0  Wall.    (U.   S.)    291.  (Tex.    Civ.    App.,    1904),     85     S.    W. 

^  Mahoney   v.    Ashton     4    H.    &   M.  444.      Contra    Grand  Lodge  I.   O.   M. 

(Md.)   295.  A.  V.  Wieting.  168  111.  408,  48  N.  E. 

'Davis    V.    Wood,     1    Wheat.     (U.  59,   61    Am.    St.    Rep.    123;     Knights 

S. )   6.  Templar   &  Masons'   Life     Indemnity 

*  Preston    v.    Hanney,    2    H.    &    M.  Co.  v.  Crayton,  209  111.  550,  70  N.  E. 

(Va.)    55.  R.    1066. 

"Fowle  V.  Child,  164  Mass.  210,  41  *  The  record  of  a  coroner's  inquest 

N.  E.  291,  49  Am.  State  Rep.  451.  attached  to  proofs  of  death  made  by 

°Patton    V.    Caldwtll,    1  Dall.    (U.  the  beneficiary  or  his  agent  under  an 

S. )   419.  insurance  policy  is  admissible  in  evi- 

'Cox  V.  Royal  Tribe,  42  ©re.  365,  dence  upon  the  ground  that  it  con- 


Sec.  218.] 


Public  Documents.  ^^^ 


The  question  when  a  decision  of  a  court  on  a  motion  becomes 
a  final  adjudication  between  the  parties  of  the  matters  necessarily 
involved  in  the  consideration  of  tlie  motion  is  often  one  of  much 
difficulty.     It  has  been  held  in  Kansas  that  orders  confirming  or 
setting  aside  judicial  sales  are  conclusive  on  all  matters,  involved 
in  the  proceedings  of  the  officer  executing  the  writ,  probably  be- 
cause the  determination  of  such  motion  becomes  a  final  order  after 
indgment,  but  a  motion  to  discharge  an  attachment  lacks  the  ele- 
ment   of    a     formal    adjudication     of    title    to    the     attached 
property.^     An    order    made    on    a    summary    hearmg    m    the 
course     of     a     proceeding     may     be     conclusive     as     a     bar 
to  a  new  action.     So  the  decision  of  a  petition  by  an  insolvent  m 
the  insolvency  court  for  an  order  that  the  assignee  pay  over  to  him 
certain  funds  is  conclusive  of  a  new  action  by  him  on  the  same 
cause  ^«    Probate  courts  are  everywhere  courts  of  general  and  ex- 
clusive jurisdiction  over  the  estates  of  deceased  persons  and  their 
adjudication,  cannot  be  collaterally   attacked.      So  a  sale  made 
nnder  an  order  of  the  probate  court  cannot  be  impeached  collater- 
ally by  showing  that  the  debts  under  which  the  sale  was  made 
were  contracted  prior  to  the  issue  of  the  United  States  patent  to  the 
land  sold  and  consequently  that  the  sale  was  void  under  the  United 
States  Homestead  Laws  where  the  probate  record  does  not  show 
when  the  debts  were  contracted.^^     The  appointment  by  the  pro- 
bate court  of  a  guardian  for  an  infant  cannot  be  attacked  collater- 
ally by  showing  that  the  court  had  no  jurisdiction  as  the  infant 
wag  not  a  resident  of  the  county  unless  that  fact  appears  from 
the  record,  neither  can  the  appointment  be  attacked  collaterally 
by  showing  tliat  another  guardian  had  previously  been  appointed 
for  the  child  by  a  court  for  another  county.^'     It  is  competent  to 
show  that  one  of  the  parties  has  pleaded  the  statute  of  frauds  m 
another  action  involving  the  same  transaction  by  introducing  the 
pleadings  in  that  action  although  it  may  be  still  pending. 

tains    admissions    of    the    beneficiary  „:  S""kler   v    McKenge      127     Cal. 

against  his  interests  as  to  the  cause  554   59  P.  9?2,  78  Am^  St.  Rep.  8b. 

of  death,  bbut  the  coroner's  inquest  is  "J.   B-  Watkins  Land,  ^t^-'  ^°J^^- 

not     admissible     when     attached     to  Mullen,  62  Kan.  1,  61  P.  385,  84  Am. 

nroofs    furnished    by    the    company  s  bt.  Kep.  6U. 

&ent     Cox.  V.  Royal  Tribe  of  Joseph,  -  Cox  v.  Boyce,  152  Mo.  576,  54  S. 

aI  Ovp  ^65    71  Pac    73  W.  467,  75  Am.  St.  Rep.  483. 

''.BlSr'v''Ande^::n,  58  Kan.  97,  48  ^"^e  Montague   v.   Bacharach,    187 

P.  562,  62  Am.  St.  Rep.  606.  Mass.  128,  72  N.  E.  938. 


686  Evidence.  [Chap.  20 

Sec.  219.  Judgments,  Proof  of. 

The  proceedings  of  a  court  of  record  can  only  be  proved  by  the 
record  itself,  certified  by  the  clerk  nnder  the  seal  of  the  court.^ 
The  original  files  in  the  case  accompanied  by  the  testimony  of  the 
clerk  and  the  execution  are  insnfiicient.^  But  when  there  is  not  a 
plea  of  7i,ul  tiel  record,  but  the  record  becomes  material  to  prove 
some  allegation  in  the  pleadings,  or  upon  some  collateral  issue,  it 
may  be  proved  either  by  the  production  of  the  record  when  com- 
plete, by  an  exemplification  or  by  an  examined  or  other  authenti- 
cated copy.  In  England,  formerly,  records  of  judgments  of  the 
superior  courts  at  Westminster,  etc.,  were  not  complete  until 
entered  on  parchment  and  enrolled  f  and  a  copy  of  a  judgment, 
in  paper,  signed  by  the  master,  was  not  evidence  of  the  judgment, 
for  it  had  not  yet  become  permanent  ;'*  though  such  entry  was  suffi- 
cient to  warrant  execution.  In  one  case,^  the  issue  roll,  not  under 
the  seal  of  the  court,  with  a  nolle  pros,  entered  thereon  against  a  co- 
defendant,  was  held  insufficient  proof  of  the  riolle  pros.  It  would 
seem  that  a  regular  entry  on  record  was  necessary.  But  where 
the  pleadings  did  not  allege  any  matter  of  record,  but  only  averred 
the  pendency  of  a  judicial  proceeding  before  the  record  is  made 
up' — ^as  that  a  trial  was  had — the  fact  might  be  proved  by  the 
production  of  the  nisi  prius  record,  or  indictment,  which  are  the 
official  minutes;  and,  in  some  cases,  perhaps,  by  mere  oral  evi- 
dence.^ 

An  execution  offered  in  evidence  must  conform  to  the  judgment, 
on  which  it  is  claimed  to  be  founded,''  although  where  an  execution 
contained  a  clerical  error  as  to  the  date  of  the  judgment  it  was 
held  that  tlie  judgment  plaintiff  might  testify,  to  connect  the  execu- 
tion with  the  judgment,  that  he  had  never  recovered  or  had  any 
other  judgment  against  the  defendant  than  the  one  admitted  in 
evidence  and  an  execution  docket  is  admissible  to  identify  the 

'  Northrop  v.  Chase,  76  Conn.  146,  "  B.  N.  P.  228 ;  Glynn  v.  Thorpe,  I 

56   A.   518.     To   show  the   facts   con-  B.  &  A.  153. 

eluded  by  a  judgment  the  record  must  *  B.   N.  P.  228. 

be   produced.      Gambrill   v.    Schooley,  Tagan  v.  Dawson,  4  M.  &  G.  711. 
93  Md.  48,  52  A.  500.  505;   Kelly  v.  *  Pitton  v.  Walter,  1  Stra.   162;    R. 
Morray,  L.  R.,  1  C.  P.  158;  Coravns'  v.  Browne,  M.  &  M.  315;   R.  v.  New- 
Dig.,    Record     (A)      (B)  ;     Kemp"   v.  man.  2  Den.  C.  C.  390. 
Neville,  10  C.  B.  N.   S.  523.  ''Kinkade  v.    Gibson,   209   111,    246, 

^Waterbury  Lumber  &  Coal  Co.  v.  70  N.  E.  R.  683. 
Hinckley,  75  Conn.  187,  52  A.  739. 


Sec.  219.]  Public  Documents.  687 

execution.^    When  the  record  does  not  settle  the  question,  evidence 
is  admissible  to  show  what  was  in  fact  decided  by  a  judgment.^ 

To  prove  a  fact  connected  with  proceedings  in  another  court,  a 
transcript  of  the  whole  record  is  the  best  evidence,  and  a  portion  of 
the  record,  as  the  judgment,  is  incompetent  as  it  may  be  mislead- 
ing^" in  cases  where  a  party  intends  to  avail  himself  of  the  judg- 
ment or  decree  as  an  adjudication  upon  the  subject  matter  and 
where  it  is  material  for  the  record  to  show  the  jurisdiction  of  the 
court  rendering  the  decree.  But  a  part  of  the  record  may  be  intro- 
duced to  prove  some  collateral  fact  in  issue.  So  where  it  was 
material  to  show  that  a  party  had  a  certain  sum  of  money  at  a 
certain  date  the  record  of  a  decree  for  distribution  in  probate 
granting  him  that  sum  is  admissible  although  the  whole  record  is 
not  transcribed.^^  Testimony  of  a  witness  who  has  examined  the 
record  in  a  case  is  inadmissible  to  prove  the  record,  but  a  certified 
copy  of  it  under  the  hand  and  seal  of  the  clerk  should  have  been 
produced,  as  it  is  the  best  evidence.^^  It  has  been  held  that  the 
minute-book  of  the  clerk  of  the  peace  is  not  enough  to  prove  that 
an  indictment  was  preferred ;  nor  is  the  original  indictment  itself, 
though  indorsed  as  a  true  bill  ;^*  yet  in  both  tliese  cases,  the  allega- 
tion of  the  indictment  was  only  introductory  to  the  gist  of  the  pro- 
ceeding, which  was  .a  conspiracy  to  keep  back  a  witness  in  one 
case,  and  an  action  on  an  agreement,  after  indictment  found,  in 
the  other.  I^or  is  the  minute-book  in  which  the  proceedings  at 
sessions  are  entered,  and  from  which  the  record  isi  made  up,  evi- 
dence of  the  names  of  the  justices  in  attendance  at  the  trial  of  it.^'"* 
Where  the  record  alleges  an  adjournment  by  A.  and  others,  parol 
evidence  may  be  given  as  to  the  justices  actually  present.  The 
minutes  of  proceedings  are  evidence  of  them  on  a  trial  before  the 
same  court  sitting  under  the  same  commission.^^     An  allegation 

*De  Loach  v.  Robbins,  102  Ala.  28S.  does  not  prove  the  judgment.  Thorap- 

14  So.  777,  48  Am.  St.  Rep.  4G.  son  &  Lively  v.  Mann,  53  W.  Va.  432, 

*  Fahey  v.   Esterly  Machine  Co..    '.i  44  S.  E.  246. 

N   D    220,  55  N.  W.  580,  44  Am.  St.  '-Mayer  v.  Brensinger,  180  111.  110, 

Rep.  554.  54  N.  E.  159,  72  Am.  St.  Rep.  196. 

'"  Southern    Ry.     Co.     v.    Seymour.  '^  Stewart   v.   State,   35   Tex.   Crim. 

(Tenn.)   83  S.  W.  674.     A  certificate  Rep.   174,   32   S.  W.   766,  60  Am.  St. 

by  a  clerk  of  court  under  the  caption  Rep.  35. 

of  a  case  "judgment  in  favor  of  the  '^  R.  v.  Smith,  8  B.  &  C.  341;  Por- 

plaintiff   against    the    defendant   for  ter  v.  Cooper,  1  C.  M.  &  R.  388. 

$250   and   $67.10   costs,"     is    a   mere  ''*  R.  v,  Bellamy,  Ry.  &  M.  171. 

abstract,  is  only  the  construetjon  of  '"  R.  v.  Tooke,  cited  8  B.  &  C.  343;. 

the  clerk's  entry  in   the  record   and  R.  v.  Newman,  supra. 


688  Evidence.  [Chap.  20 

that  an  appeal  came  on  to  be  heard  at  the  sessions  must  be  proved 
bj  the  production  of  the  record  rsgularly  made  up  in  parchment ;" 
but  where  (as  is  usually  the  case)  no  record  but  the  minute-book 
is  kept  by  the  sessions,  such  book  was  admitted  in  evidence. •^^ 

In  an  action  upon  a  judgment,  any  variance  between  the  judg- 
ment described  in  the  declaration  from  that  of  the  record  will 
exclude  the  record  from  being  received  as  evidence. ^^ 

Where  the  plaintiff  was  enjoined  from  collecting  the  amount  of  a 
judgment  recovered  by  him,  and  execution  was  afterward  issued 
thereon,  under  which  land  of  the  defendant  was  sold  in  an  action 
by  the  purchaser  to  recover  pos'session,  the  record  of  the  judgment 
is  admissible  in  evidence  without  first  producing  the  sheriff's  deed, 
the  decree  dissolving  the  injunction  and  the  injunction  bond.^'*  If 
an  entry  record  does  not  show  when  it  was  made,  a  judgment  nunc 
pro  tunc,  ascertaining  the  date,  cannot  be  contradicted  by  showing 
the  dates!  of  preceding  and  succeeding  entries.^^  Judgments  and 
the  proceedings  in  the  causes  in  which  they  were  rendered  can  only 
be  proved  by  the  production  of  the  record  itself,  or  by  a  certified  or 
examined  copy,  by  the  clerk  of  the  court.  They  are  not  sufiiciently 
verified  by  the  oath  of  a  witness  that  he  was  at  one  time  clerk  of 
the  court,  and  that  certain  papers'  exhibited  to  him  as  records  of 
the  court,  were  issued  and  filed  by  him  when  he  was  clerk  of  the 
court,  and  are  in  his  handwriting  and  that  of  his  deputies,  and  he 
believes  they  are  the  records  of  the  court;  and  of  another  witness, 
that  he  received  the  records  from  the  clerk  of  the  court  as  the 

"R.  V.  Ward,  6  C.  &  P.  366;   Ac-  record,   when   offered   in   evidence   for 

cord.   Giles  v.   Siney,  infra.  the  recovery  of  the  debt  and  damages, 

'*  R.  V.  Yeoveley,  8  Ad.  &  EI.  806.  without     costs,    was     also     rejected. 

"  Suydara  V.  Aldrich,  3  McLean,  (U.  Wash  v.   Foster,    3    Mo.   205.     Thus, 

S.  ),383.  where    the    declaration    described    a 

In  a  Missouri  case,  the  declaration       judgment  recovered  at  ,  in  the 

alleged  that  the  plaintiff  recovered  his  county  of  Richmond,  in  the  State  of 

debt,  $1,000,  and  his  damages,  $32.19,  New    York,    by    and    before    the    Su- 

and  his   costs,   and   averred   that  his  prenie    Court   of   judicature   for    said 

costs   amounted   to   $13.90,    and   con-  county  and  State,  the  exemplification 

eluded  with  a  pro  ut  patet  recorduin.  produced  was  a  judgment  rendered  by 

The  plea  was  nul  tiel  record.     A  re-  the   supreme    court    of    judicature   of 

cord   was   offered   in    evidence,   show-  the  people  of  the  State  of  New  York, 

ing    the    amount    of    the     debt    and  at  tne  city  of  Albany,  it  was  held  that 

damages       without       showing       the  the  record  offered  in  evidence  was  not 

amount  of     the     costs.       Below     the  admissible  under  the  plea  of  mil  tiel 

certificate  of  tlie   clerk   and  the   seal  record.     Pearsall     v.    Phelps,   3   Ala. 

of  the  court  was  a  taxation  of  costs,  525. 

amounting  to  the  sums  averred  in  the  "  Bumpass  v.  Webb,  3  Ala.  109.         ^ 

declaration.     The  record  Avas  rejected  "  Eslava  v.  Elliott,  5  Ala.  264.     ,  ,' 
on  the  ground  of  variance.     The  same 


Sec.  219.] 


Public  Documents. 


689 


records  of  the  suits  to  which  they  relate.^-  Where  the  records 
have  been  destroyed  except  the  judg-ment-book,  parol  evidence  of 
the  pleadings,  etc.,  is  not  admissible  without  a  certified  copy  of 
the  judgment.''  When  all  the  necessary  papers  to  constitute  the 
judgment-roll  in  a  foreclosure  action  existed,  but  were  never 
attached  together  in  the  form  of  a  roll,  it  was  held  that  they  were 
admissible  in  evidence  in  support  of  a  title  to  property  acquired 
under  a  sale  thereof  as  directed  by  the  judgment  therein.'*  Evi- 
dence is  admissible  to  show  the  particular  day  on  which  a  judg- 
ment was  rendered,  when  the  record  is  of  a  term  generally,  and 
the  particular  day  becomes  material  to  the  rights  of  parties.'"  A 
transcript  of  the  record  of  a  replevin  suit  without  the  date  of  the 
writ,  is  conclusive  evidence  of  the  right  of  property  of  the  plain- 
tiff, at  the  date  of  judgment  only.'^ 

A  record  imports  absolute  verity,  and  must  be  tried  by  itself. 
It  must  be  complete  and  perfect  in  itself  without  reference  to  ex- 
traneous circumstances.  If  deficient  or  imperfect,  it  cannot  be 
assisted  or  aided  by  evidence  deliors  the  same.  So,  where  a  record 
of  a  judgment  against  lands  for  taxes  unpaid,  does  not  state  in 


"Lyon  V.  Boiling,  14  Ala.  753. 

"^Nims  V.  Johnson,  7  Cal.  110. 

2*  Sharp  V.  Lumley,  34  Cal.  611. 

=" Young  V.  Renyon,  2  Day  (Conn.), 
252. 

""  Sexton  V.  Brock,  15  Ark.  345. 

The  plaintiff,  in  an  action  on  a  judg- 
ment, offered  in  evidence  a  writ  and 
declaration  returnable  to  a  justice  of 
tho  peace,  with  regular  service  in- 
dorsed thereon,  and  the  following  min- 
utes in  the  handwriting  of  the  justice. 
viz.:  "Court  fees  paid.  Plea,  general 
issue,  non  assumpsit,  and  issue.  Con- 
tinued 26th  September,  1836.  Dam- 
ages, $5.75.  Court  50  cts.  Attend- 
ance, $1"  (and  other  items  of  a  bill 
of  costs,  amounting  to  $4.23)  ;  and 
also  an  execution  counting  on  a  judg- 
ment between  the  parties  to  the  writ, 
recovered  before  the  same  justice,  for 
the  same  sums  of  debt  and  costs,  and 
signed  by  the  justice,  with  a  return  of 
nOn  est  inventus  thereon.  It  appeared 
that  the  justice  died  in  July,  1837. 
It  was  held  that  these  writings  did 
not  constitute  or  show  a  record  of  a 
judgment   rendered;    and  that,   there 

44 


being  no  proof  of  a  record  once  ex- 
isting and  lost,  they  were  not  admis- 
sible as   a  legal   substitute   for   such 
proof.    Davidson  v.  Murphy.  13  Conn. 
213.      In    Maine,    in    a    suit    upon    a 
judgment   recovered    before   a   justice 
of  the  peace,  the  plaintiff  is  bound  to 
establish  the  existence  of  the  record; 
and  for  that  purpose  it  is  not  suffi- 
cient to   introduce  a  book  alleged  to 
contain  the  record,  without  some  proof 
of    its    authenticity.      Wentworth    v. 
Keizer,   33   Me.    367.      In   Indiana,   a 
judgment   of  a  justice    of    the  peace 
should  be  signed,  in  order  to  be  ad- 
missible     in      evidence.        Ringle     v. 
Weston,  23  Ind.  588.     In  Missouri,  it 
may  be  proved  by  parol  that  the  tran- 
script of  a  judgment,  obtained  before 
a  justice  of  the  peace,  was  filed  in  the 
county    court,     and   that   the   county 
court'allowed  the  amount  of  the  judg- 
ment   so    filed.      The    records    of    the 
county   court  reciting   the   transcript 
may  "be   read   without   producing  the 
transcript.    Huston  v.  Becknell,  4  Mo. 
39= 


690 


Evidence.  [Ohap.  20 


what  year  or  m  what  term  it  was  rendered,  the  sheriffs  deed  must 
fall  for  want  of  a  foundation  to  rest  upon.^^  But  in  all  cases  the 
question  as  to  the  jurisdiction  of  the  court  rendering  it,  may  be 
inquired  into,  and  if  it  has  no  jurisdiction,  the  judgment  is  a 
nullity,  and  therefore  of  no  value  as  evidence.^^  A  copy  of  the 
case,  made  by  the  presiding  justice  of  the  court  of  common  pleas,, 
and  transferred  to  the  superior  court,  being  the  case  upon  which 
the  judgment  in  the  last  named  court  was  rendered,  and  the  foun- 
dation of  the  final  judgment  is  proper  evidence  to  show  what  mat- 
ters were  litigated  and  decided  in  the  suit/^  Where  a  record  of 
a  prior  judgment  is  competent  evidence  in  a  cause, 
irregularity  or  error  in  that  judgment  cannot  be  objected  to  or 
inquired  into  on  the  trial.^^  A  record  of  conviction  is  not  invalid 
because  the  judge  who  signed  it  received  his  appointment  after 
the  conviction  took  place.^^  The  judgment-roll  in  a  partition 
suit  is  admissible  in  evidence,  in  an  action  in  ejectment,  to  show- 
title  in  the  palintiff,  although  it  was  not  signed  and  docketed  until 
after  the  commencement  of  the  action.^'  Where  the  date  of  a 
judgment  is  prior  to  those  of  the  trial  and  verdict,  it  will  be  con- 
sidered a  mere  clerical  error,  and  be  no  objection  to  the  admission 
of  the  judgment  in  evidence,  in  an  action  against  the  sheriff  for 
taking  insufficient  sureties  on  the  writ  of  replevin.^^  A  record  of 
a  judgment  recited  that  the  court  entered  judgment  for,  etc.  It 
wag  held  that  this  was  as  good  as  if  it  recited  that  it  was  adjudged 
by  the  court,  etc.,  as  it  prima  facie  showed  a  judgment,  which  was 
enough,  until  the  record  was  impeached.^* 

Sec.  220.  Proof  of  Foreign  Judgments. 

A  judgment  duly  verified  by  a  seal  proved  to  be  that  of  a  for- 
eign court  will  be  presumed  to  be  regular  and  agreeable  to  the 
laws  of  the  State  or  country  where  it  was  rendered,  until  the  con- 

"  Young  V.  Thompson.  14  111.   380;  ^°  Brackett  v.  Hoitt,  20  N.  H.  257. 

Douglass  V.  McKenire,  19  Conn.  489;  '°  Stothoff  v.  Dunham,   19  N.  J.  L. 

Gallowav  v.  McKeiten,  5  Ired.  L.   (N.  181. 

<J. )   12;  Farlev  v.  Budd.  14  Iowa,  289;  ''  Stevens  v.  People,  1  Hill   (N.  Y.), 

Daws  V.  McMichael,  6  Paige,  Ch.   (N.  261. 

Y. )    139 ;   Willard  v.  Whitney,  49  Me.  ''  Lynch  v.  Rome  Gas  Light  Co.,  42. 

235.  Barb.   (N.  Y.)    591. 

"  Custis  V.  Geoi-n^etown,  etc.,  T.  Co..  ''  Myers  v.  Clark,  3  W.  &  S.  (Penn.) 

2  Cranch    (U.  S.  C.  C),  81;   Lincoln  535. 

V.   Lamer,   2  McLean    (U.   S.   C.   C),  "Vilas  v.  Reynolds,  6  Wis.  214. 

473 ;  Wistervelt  v.  Lewis,  2  id.  473. 


Ssc.  220.]  Public  Documents.  691 

trarj  is  shown.^  A  State  has  power  to  prescribe  the  mode  of 
authentication  of  foreign  records  in  its  courts,  which  power  is 
concurrent  with  the  power  of  congress,  exercised  by  U.  S.  Rev. 
Sts.,  and  a  record  certified  under  either  mode  is  admissible  in 
evidence.^  A  judicial  record  from  another  State  not  authenticated 
as  required  by  act  of  congress,  is  not  admissible  in  evidence,^  The 
proper  method  of  proving  it  is  by  an  exemplified  copy,  although 
it  may  be  proved  by  an  examined  copy,  or  by  a  certified  copy, 
although  in  the  latter  case  the  certificate  must  be  authenticated,* 
tither  by  the  certificate  of  the  judge  of  the  court,  or  by  a  witness 
who  saw  the  clerk  afiix  the  seal  of  the  court  thereto,  and  attest  ths 
copy  with  his  own  name.^  If  the  court  has  no  seal,  the  fact  may 
be  shown.^  If  the  copy  is  authenticated  by  the  judge  of  the  court, 
his'  handwriting  must  be  proved,^  which  it  has  been  held  may  be 
done  by  the  certificate  of  a  notary  public.^  A  transcript  of  a  record 
of  a  foreign  judgment  is  sufficient  if  signed  by  the  judge  and  clerk 
by  their  initials'  only  of  their  Christian  names  and  their  suniames 
in  full  where  the  statute  requires  only  that  they  be  "  signed  " 
without  specifying  further.®  The  seal  of  the  court,  if  it  has  one, 
must  be  affixed  to  the  record  itself,  and  it  is  not  sufficient  that  it 
is  annexed  to  the  certificate  of  the  judge  of  the  court  authenticat- 
ing the  attestation  of  the  clerk  who  certifies  the  record.^*^  In  an 
action  on  a  foreign  judgment  the  jurisdictional  facts  must  appear 
affirmatively  from  the  record.  But  where  due  service  did  not  ap- 
pear in  the  record  of  the  judgment  the  foreign  court  may  amend 
its  judgment  to  correspond  with  the  fact  by  showing  service  and 
then  suit  can  be  brought  upon  the  judgment  roll  as  amended,^^  and 
a  copy  purporting  to  contain  the  entire  record  of  a  court  of  another 
State  will  be  presumed  to  be  such.^^  When  the  record  is  under  seal, 
it  is  evidence  that  the  court  rendering  the  judgment  is  a  court  of 

^  Ellis  Estate,  In  re,  55  Minn.  401,  *Yeaton  v.  Fry,  5  Craneh   (U.  S.), 

56  N.  W.  1056,  43  Am.  St.  Rep.  514.  335. 

*  Thrasher  v.  Ballard,  33  W.  Va.  "Old  Wayne  Mut.  Life  Assn.  v. 
275,  10  S.  E.  411,  25  Am.  St.  Rep.  McDonough  (Ind.,  1905),  73  N.  E. 
894.  703. 

'Lehmann  &  Co.  v.  Rivers,  110  La.  "Turner   v.   Waddington,  3   Wash. 

1077,  35  So.  296.  (U.  S.)   126. 

*  Church  V.  Hubbart,  2  Craneh  { U.  ^^  Cunningham  v.  Spokane  Hy- 
S.),  238.  draulic  Mining  Co.,  20  Wash.  450,  5-5 

=  Buttrick  v.  Allen.  8  Mass.  273.  P.  756,  72  Am.  St.  Rep.  113. 
'Packard  v.  Hill,  7  Cow.    (N.  Y.)  "Shilling  v.  Seigle,  207  Penn.  281, 

434.  56  A.  957. 
^  Henry  v.  Adley,  1  Camp.  63. 


G92  Evidence.  [Cliap.  20 

record.^^  If  the  final  record  in  a  cause  lias  been  made  up,  the  origi- 
nal papers  are  not  admissible  as  evidence."  But  until  the  record 
has  been  made  up,  the  writ,  and  all  original  papers 
on  file  in  the  clerk's  office,  are  admissible  in  the  same 
court. ^^  In  Maine,  it  is  held  that  either  the  records  of  inferior 
courts  of  that  State,  or  duly  authenticated  copies  thereof,  or  the 
original  papers,  are  admissible  as  evidence.^®  The  whole  record 
should  be  produced,  although  only  a  part  of  it  need  be  used."  The 
records  of  one  county  court  brought  into  another  court  by  the 
county  clerk  of  that  county,  are  admis'sible  without  further  proof 
of  their  genuineness,  but  not  if  they  find  their  way  into  another 
county  and  are  brought  into  court  by  some  other  person.  Judicial 
proceedings  before  a  justice  of  the  peace,  in  ISTorth  Carolina,  are 
held  not  to  prove  themselves,  like  records,  but  parol  evidence  may 
be  introduced  to  show  that  they  are  void.^^  Summary  and  early 
records  of  the  court  are  admissible  in  evidence. ^^  And  generally, 
tlie  pendency  of  a  suit  in  a  court  of  record  can  only  be  proved 
by  record  evidence.^''  The  circuit  court  of  the  United  States  is  not 
a  foreign  tribunal,  s'o  as  to  require  its  judgments  to  be  proven  as 
facts,  but  its  judgments  under  its  seal  are  admissible  in  evidence, 
the  seal  proving  itself  like  the  seal  of  a  State  court.^^ 

Sec.  221.  Between  what  Parties  Admissible. 

A  judgment  is  only  conclusive  upon  the  parties  thereto,  and  their 
privies;  that  is,  between  the  parties  and  those  united  with  them  in 
interest.  By  pivity  is  meant  mutual  or  successive  relationship  to 
the  same  rights  of  property,  whether  is  grows  out  of  a  contract, 
the  operation  of  law,  or  kinship. 

There  are  five  kinds  of  privies :  privies  of  blood,  such  as"  the 
heir  to  the  anceslor ;  privies  in  representation,  as  executors  or  ad- 
ministrators to  the  deceased ;  privies  in  estate  between  donor  and 
donee,  lessor  and  lesisee ;  privies  in  respect  of  contract ;  and  privies 
on  account  of  estate  and  contract  together.     Thus  a  receiver  may 

"Smith  V.  Redden,  5  Harr.    (Del.)  "Carroll  v.  M'Gee,   3  lied.  L.    (V. 

321.  C.)    13. 

"Brown  v.  Isbell.  11  Ala.  1009.  ^^  Boal     v.     King,    Wright    (Ohio), 

"Peck  V.   Sand.   2   Ga.   1.  223. 

"  State  V.  Bartlett,  47  Me.  396.  -"  Smiley  v.  Dewey,  17  Ohio,  156. 

"  Carrick    v.    Armstrong.     2     Cold.  =="  Williams  v.  Wilkes,   14  Penn.  St. 

(Tenn.)   265;  Walker  v.  Stewart,  9:?  228. 
Ind.  246. 


Sfec.  221.] 


Public  Documents. 


693 


be  called  the  privy  of  the  plaintiff  by  representation.'  The  repre- 
ssntatives  of  parties  to  a  suit  are  bound  by  the  judgment  f  so  are 
the  heirs  of  such  parties  f  but  not  where  the  heirs  inherited  after 
suit  brought  and  before  decree."  The  proceedings  subsequent  to 
the  death  of  the  party  are  void  unless  his  heirs  are  brought  in.^ 

It  follows,  as  a  necessary  and  invariable  rule,  that  a  judgment 
is  not  admissible  to  establish  or  defeat  the  essential  right  of  others 
than  the  parties  indicated.^  Either  party  to  the  record,  however, 
may  use  it  to  establish  a  material  fact  in  another  suit  between 
them  f  but,  unless  the  judgment  is  directly  between  the  same  par- 
ties, or  constitutes  a  part  of  the  res  gestae  out  of  which  the  action 
in  which  it  is  sought  to  use  it  grew,^  it  is  not  admissible.  Thus,  in 
an  action  of  slander  against  a  husband,  a  judgment  in  a  former 
suit  between  the  plaintiff  and  the  husband  and  his  wife  for  the 
same  slander,  it  was  held  not  to  be  admissible  f  and  the  reason  is. 


'  Tinkham  v.  Borst,  24  How.  Pr.  (N. 
Y.)  24G;  see.-  also,  Goddard  v.  Ben- 
son, 15  Abb.  Pr.   (N.  Y.)   191. 

^Burhans  v.  Van  Zandt,  13  N.  Y. 
523. 

'  Wood  V.  Bvington,  2  Barb.  Ch.  (N. 
Y.)    387. 

*  Requa  v.  Holmes,  16  N.  Y.  193. 
=  Washington   Ins.    Co.     v.     Slee,    2 
Paige    Ch.     (X.   Y.)     3G5 ;     Kelly   v. 
Hooper,  3  Yerg.  (Tenn.)  395;  9  Wend. 
(N.  Y.)   649.  .   . 

There  is  at  common  law  no  privity 
between  an  executor  and  the  admin- 
istrator de  bonis  non  cum  tcstameiHo 
annexo,  and  a  judgment  recovered  by 
the  former  will  not  bar  a  suit  brought 
by  the  latter;  Grout  v.  Chamberlin,  4 
Mass.  611;  and  where  the  adminis- 
trator recovers  a  judgment  and  dies, 
the  succeeding  administrator  may 
bring  a  new  action.  Pastal  v.  Ward-^, 
Latch,  140;  Barnhurst  v.  Yelverton. 
Yelv.  83  ;  Gates  v.  Gough.  id.  33  ;  Allen 
V.  Irwin,  1  S.  &  R.  (Penn.)  549.  Nor 
is  there  any  privity  between  an  ex- 
ecutor or  administrator  and  the  heir 
or  devisee  of  the  land,  and  a  judg- 
ment against  the  former  is  not  evi- 
dence against  the  latter  to  charge  tlie 
real  estate.  Mason  v.  Peters,  1 
Munf.  (Va.)  437;  Deneale  v.  Archer, 
8  Pet.  (U.  S.)  528;  sgood  v.  Manhat- 
tan Co.,  3  Cow.  (N.  Y.)  612;  Neal  v. 
M'Combs,  2  Yerg.  (Tenn.)  10. 
Whether  there  is  any  privity  between 


an  executor  or  administrator  and  a 
legatee  of  personals — quere.  Mason  v. 
Peter,  supra,  and  see  a  note  to  that 
case  by  the  reporter.  See  Goddard  v. 
Benson,  15  Abb.  Pr.   (N.  Y.)    191. 

A  decree  for  the  specific  execution 
of  a  covenant  real  in  a  suit  com- 
menced by  the  covenantee,  and  after- 
ward revived  in  favor  of  his  heirs,  i? 
no  bar  to  a  suit  brought  by  the  ad- 
ministrator of  the  covenantee  to  re- 
cover damages  for  the  breach  of  such 
covenant,  if  he  was  not  made  a  party 
to  the  suit.  The  covenantor  has  no 
means  of  relieving  himself  from  the 
double  burden  of  executing  the  agree- 
ment and  paying  damages  for  the 
breach,  in  such  case,  save  by  resort- 
ing to  a  court  of  equity.  Combs  v. 
Tarlton,  2  Dana   (N.  Y.') ,  474. 

'Jackson  v.  Vedder,  3  Johns.  (N. 
Y.)  8:  Simson  v.  Kennedy.  Harp.  (S. 
C.)  370;  Fowler  v.  Collins,  2  Root 
(Conn.),  231;  Banks  v.  Sharp,  6  J. 
J.  Mar.    (Ky.)    ISO. 

'  James  v.  Buzzard,  1  Hempst. 
(Tenn.)  240. 
'  Wells  v.  Shipp,  1  Miss.  353. 
°  Magauran  v.  Patterson,  6  S.  &  R. 
(Penn.)  278.  That  the  parties  must 
be  the  same,  see  Strutt  v.  Bovington, 
5  Esp.  56 :  Morse  v.  Williams,  C.  & 
M  615;  Blakemore  v.  Glanmorgan 
Canal  Co.,  2  C.  M.  &  R.  133;  Smith  v. 
Webber,  1  Ad.  &  El.  118. 


694  Evidence,  [Cliap.  20 

because  neither  the  parties  to,  nor  the  ground  of,  the  action  are  the 
same.^" 

The  rule  is  that  a  record  of  one  suit  cannot  be  read  in  another 
as  evidence,  unless  both  parties  or  those  under  whom  they  claim, 
were  parties  to  both  suits,  upon  the  ground  that  a  document  cannot 
be  used  against  a  party  who  could  not  have  availed  himself  of  it, 
had  it  been  made  in  his  favor.^^  A  judgment  against  the  princi- 
pal is  not  conclusive  upon  a  surety  who  was  not  made  a  party  to  the 
suit.^^  Where,  for  the  reasons  stated,  a  judgment  cannot  be  used 
against  a  party,  it  cannot  be  used  in  his  favor/^  The  fact  that  an 
appeal  is  pending  from  a  judgment,  or  a  motion  for  a  new  trial, 
does  not  defeat  its  force  or  admissibility  as  evidence;  until  actu- 
ally reversed^  it  is  conclusive  against  the  parties}*  There  are 
instances  in  which  a  record  is  admissible  against  a  party  to  it,  in 
favor  of  one  who  is  not,  to  show  his  acts;  as,  that  his  possession  of 
a  tract  of  land  extended  to  a  particular  boundary.^^ 

So  records  may  be  admitted  in  suits  not  between  the  same 
parties  or  privies,  ivJiere  upon  the  facts  of  the  trial  and  the  recov- 
eries in  such  records,  the  interests  of  others  hang  as  incidents  or 
consequ£nces.  The  term  ''  parties  "  includes  those  who  are  directly 
interested  in  the  subject-matter  of  the  suit,  knew  of  its  pendency 
and  had  the  right  to  control  and  direct  or  defend  it.^®  One  who 
is  not. a  party  to  the  record,  whose  counsel  is  present  and  partici- 
pates in  the  trial  of  a  suit  against  his  agent,  is  not  bound  by  a  judg- 
ment rendered  in  that  suit.^*  Where  a  head  of  a  family  represents 
its  members  as  to  homestead  in  such  sense  as  to  be  a  trustee  for 
them  as  beneficiaries  they  would  ordinarily  be  bound  by  a  judg- 

'"  Killingsworth      v.      Bradford.     2  "  Cliites  v.  Conlev,  2  Dana    (Ky.), 

Overt.   (Tenn.)   204;  Paynes  v.  Coles,  21. 

1    Munf.      (Va.)     373;     Chapman    v.  ^^  Under    a    statute    providing   that 

Chapman,  1  Munf.    (Va.)    398.  no  appeal  was  to  affect  a  judgment,  a 

^^  Paynes  v.   Coles,   1   Munf.    (Va.)  judgment  is  binding  pending  the  ap- 

373.  peal.       Watson    v.     Richardson,     110 

Thus  a  suit  by  A.  against  B.,  on  the  Iowa,  698,  80  N.  W.  416,  80  Am.  Sr. 

death   of  A.,  was   revived  by  C.   and  Rep.  331;  Chase  v.  Jefferson,  1  Houst. 

D..  his  brothers  and  heirs;  and  it  was  (Del.)   257. 

held  that  the  record  of  a  former  suit  ^°  Smith    v.     Shackleford,    9    Dan.i 

by  C.  against  B.,  in  M-hich  the  same  (Ky. ),  452. 

identical    point    was    in    controversy,  ^^  Courtney  v.  William  Knabe  &  Co., 

was  not  admissible  in  evidence,  A.  not  Mfg.  Co..  97  Md.  499,  55  A.  614,  616. 
claiming  title  under  C.     Chapman  v.  "  Bridaes  v.  McAlister,  106  Ky.  791. 

Chapman,  1  Munf.  (Va.)  398.  51  S.  W^  603.  90  Am.  St.  Rep.  207. 

"Clark   V.    Montgomery,    23    Barb.  '*  Central  Baptist  C.  &  S.   v.  Man- 

fN.  Y.)   464;   Thomas  v.  Hubbell,  15  Chester,  17  R.  I.  492,  23  A.  30,  33  Am. 

X.  Y.  405.  St.  Rep.  893. 


695 


S©c.  221.]  Public  Documents. 

ment  against  him  relating  to  the  homestead,  although  they  were 
not  parties  to  the  proceeding.     This  rule,  however,  does  not  apply 
if  the  plaintiff  knew  that  the  trust  estate  was  not  liable,  but  never- 
theles-s  brings  the  suit  for  the  purpose  of  charging  the  trust  estate 
with  the  payment  of  a  debt  for  which  the  trustee  is  only  personally 
liable;  and  in  such  cases,  to  render  a  judgment  having  that  effect 
conclusive  upon  the  beneficiaries  of  the  trust,  it  must  appear  that 
they  were  sui  juris  and  were  parties   to  the  suit  or  consented 
to  the  judgment.^^     In  an  action  by  a  corporation  to  recover  lor 
a  subscription  of  stock  where  it  was  claimed  by  the  defendant  that 
the  corporation  was  never  properly  organized,  a  judgment  against 
the  corporation  in  an  action  against  another  stockholder  is  not  con- 
clusive.    A  corporation  in  bringing  suit  against  a  stockholder  does 
not  represent  the  stockholder  and  neither  does  it  represent  other 
stockholders  and  hence  the  prior  judgment  was  not  against  the 
same  parties  or  their  privies.^"    A  valid  judginent  rendered  against 
a  county  on  a  matter  of  public  importance  is  binding  upon  all  its 
citizens  although  they  are  not  parties  to  the  suit.^^     In  such  in- 
stances the  production  of  such  a  record  is  proof  that  the  suit  was 
brouoht  and  the  recovery  had  as  therein  set  forth,  but  the  conse- 
quences to  others  resulting  from  those  facts  apparent  from  the 
face  of  the  record,  are  to  be  established  by  appropriate  evidence  ot 
such  other  facts  as  may  be  necessary  to  sustain  the  action  or 
defense  2^     The  doctrine  that  a  judgment  is  binding  upon  privies 
as  well  as  parties,  applies  only  as  to  the  particular  matter  involved 
in  the  judgment.''     A  decree  enjoining  defendants  or  their  gran- 
tees and  successors  from  diverting  any  of  the  waters  of  a  stream 
is  binding  upon  a  grantee  of  the  defendant  who  is  therefore  his 

-Snellin-  v.  American,  etc.,  Mort.       sheriff    having    seized    the    pods    as 
Co^of  G^  852,  33  S.  E.  634,  73  Am.       goods^  of  Nelson^on^  behaK  of^^another 

-  Nicicum    V     Burkhardt,     30     Ore.  judgment  in  the  action  by  the  plain- 

464    47  P   788    48  P.  474,  60  Am.  St.  tiffs  against  Nelson   for   damages  on 

i    '   899  '  account  of  part  of  the  goods  which  he 

"Bear    v     Board    of   County    Com-  had  sold  before  the  levy  by  the  deputy 

missioners  Brunswick  Countv,  122  N.  sheriff  is  inadmissible  m  the  later  ac- 

C   4T4    99  S    E    719.  65  Am!  St.  Rep.  tion.     Although  the  deputy  sheriff  is 

<L.  434,  -J  o.  i^.  'is^,  ^    p^.^^    .^    ^j^jg   ^g    claiming _  under 

l\r  T.     4.    1  1  T\/r;i    Qfi  Nelson   in   one   sense   still   it   is   only 

l^llFZ*-Ji  TW  Insin  the      a,  to  the  good,  he  hold,  .and  a,  to 

plaiMif?,    brought    ™it    agatast    the      other  g'o-i'3\-JJ*„='  ff^V,'  ^^t. 

s?o,f tfonf^e  td^-'Ti^:  ss^k  Tin.  -rotrst'°K*ep.  set. ; 

claimed  to  be  fraudulent,  the  deputy 


696  Evidence.  [Chap.  20 

privy  in  estate."^  In  a  proceeding  for  condemnation  of  certain 
liquors  found  in  the  possession  of  the  defendant,  it  is  open  to  him 
to  prove  his  acquittal  on  the  charge  of  keeping  liquors  with  un- 
lawful intent  and  to  show  that  both  proceedings  related  to  the  same 
liquor.  Although  the  proceeding  to  condemn  is  in  its  nature  a 
proceeding  in  7'em,  when  one  comes  in  as  a  claimant  it  is  as  to 
him  a  proceeding  inter  partes  and  he  is  entitled  to  the  benefit  of  a 
previous  adjudication  in  a  proceeding  between  himself  and  the 
State.^^  A  judgment  approving  an  executor's  final  account  is  res 
inter  alios  actae  and  not  admissible  against  one  not  a  party  to  it."^ 
A  judgment  which  establishes  a  debt  against  the  estate  of  a  de- 
ceased person  is  as  conclusive  on  the  heir  as  on  the  administrator 
where  both  the  real  and  personal  property  is  liable  to  be  subjected 
to  the  payment  of  the  debt.  Where  the  judgment  is  rendered 
against  the  estate,  it  is  in  all  its  essential  incidents  and  conse- 
quences a  judgment  in  rem  which  is  binding  on  the  whole  world.^^ 
The  allowance  of  a  creditor's  claim  against  the  estate  of  a  deceased 
person  in  the  Probate  Court  may  be  attacked  collaterally  in  any 
proceeding  to  subject  the  lands  of  an  heir  or  devisee  to  the  pay- 
ment of  the  claim,  as  the  administrator  in  paying  debts  out  of 
personalty,  with  the  possibility  of  using  the  real  estate  for  that 
purpose  occupies  a  position  rather  antagonistic  to  the 
heirs.^^  A  judgment  of  a  probate  or  other  court  of  comj)etent 
jurisdiction  as  to  the  amount  due  from  a  guardian  to  his  ward  is 
conclusive  against  his  sureties.^^  A  decree  of  divorce  adjudging 
certain  property  to  be  homestead  is  not  evidence  in  an  action  be- 
tween one  of  the  parties  to  the  divorce  suit  and  a  stranger.^"  A 
privy  in  estate  is  not  bound  by  a  judgment  or  decree  against  him 
from  whom  he  derives  his  estate,  rendered  after  he  derives  it, 
merely  because  of  such  privity. ^^  An  infant,  as  a  general  rule,  ia 
as  much  bound  by  a  decree  against  him  as  a  person  of  full  age,  and 

"Ahlers  v.   Thomas,   24   Nev.   407,  ='»  Cross  v.  White.  80  Minn.  413,  83 

56  P.  93.  77  Am.  St.  Rep.  820.  N.  W.  393,  81  Am.  St.  Rep.  267;  Bot- 

=^  State  V.  Adams.  72  Vermont,  253,  kin  v.  Kleinschmidt,  21   Mont.   1,   52 

47  A.  779,  82  Am.  St.  Rep.  937.  P.  563.  69  Am.  St.  Rep.  641 :  Deegan 

^'Long  V.  Metzger,  206  111.  475.  69  v.  Deegan.  22  Xev.  185,  37  P.  360,  58 

N.  E.  R.  493.  Am.  St.  Rep.  742. 

"Moodv  V.  Pevton.  135  Mo.  482,  36  '"  Roulston  v.  Hall.  66  Ark.  305,  50 

S.  W.  621,  58  Am.  St.  Rep.  604.  S.  W.  690.  74  Am.  St    Rep.  97. 

=*  Black  V.  Elliott,  63  Ka.  211,  65  P.  '^  MaxA^ell    v.    Leesou,    50    W.    Va. 

215,  88  Am.  St.  Rep.  239.     See,  also.  361.   40   S.   E.   420.   88   Am.   St.   Rep. 

Giddings   v.    Steele,   28   Tex.    733,   91  875;  Bensimer  v.  Fell,  35  W.  Va.  15, 

Am.  Decisions,  336.  12  S.  E.  1078,  29  Am.  St.  Rep.  774. 


Sec.  221.]  Public  Documents.  697 

can  impeacli  it  only  on  grounds  whicli  would  invalidate  it  if  ren- 
dered against  an  adult. ^^  Parties  still  unborn  at  tlie  time  of  a 
decree,  and  having  contingent  interests,  are  bound  by  it  as  they  are 
conceived  to  be  virtually  represented  by  those  in  possession.^^ 

Sec.  222.  Judgment  Conclusive  of  Fact  Recorded;  Collateral  and 
Direct  Attack. 

Judgments  and  verdicts  in  the  superior  courts  are  always  of 
record.  They  have,  therefore,  the  character  which  belongs  to  all 
records,  that  they  are  not  to  be  contradicted  by  evidence.  A  for- 
mer judgment  is  conclusive  of  the  matters  decided,  although  the 
law  w^as  incorrectly  applied,^  and  although  some  of  the  objections 
were  not  raised  in  objection  to  the  first  judgment.  The  questions 
that  are  res  judicata  are  not  confined  to  those  raised  and  insisted 
upon  at  the  former  judgment,  but  they  embrace  also  those  in  issue 
which  might  have  been  insisted  upon.^  A  prothonotary  who  has 
entered  judgment  in  accordance  with  the  power  given  to  him  will 
not  be  allowed  to  contradict  his  record  by  showing  that  it  was 
really  made  on  a  diiferent  day  from  that  set  out  in  the  record  in 
any  collateral  proceeding  in  which  the  judgment  is  called  in 
question.^  The  presumption  is  that  the  record  correctly  states  the 
date  of  the  judgment  where  it  is  claimed  that  the  judgment  was 
entered  nunc  p^o  tunc* 

Jurisdiction  will  be  presumed  although  no  mention  of  certain. 

"  Harrison   v.  Walton's  Ex'r.,  95  Va.  If  a  verdict  finding   several   issues 

721,   30   S.   E.   372,   64  Am.    St.   Rep.  is   produced  in  evidence  the  opposite 

830.  party   will    not   be    allowed    to    shosv 

^^  Harrison  v.  Walton's  Ex'r..  95  Va.  that  no  evidence  was  offered  on  one  of 

721,   30  S.   E.   372,  64   Am.   St.   Rep.  the  issues,  and  that  the  verdict  as  to 

830.     The  same  result  is   reached  by  that  issue  was  indorsed  on  the  posted, 

the    appointment    of    a    guardian     ad  by  a  mistake.  Reed  v.  Jackson,  1  East, 

litem  for  unascertained  interests  un-  355.     On  an  indictment  for  assisting 

der  a  statute  in  Massachusetts.     Lor-  the  escape  of  a  convict  out  of  prison, 

ing  \.  Hildreth,  170  Mass.  328,  49  N.  if  the  record  of  the  conviction  is  pro- 

E,  652,  64  Am.  State  Rp.  301.   '  duced   by  the  proper  officer,  evidence 

is  not  admissible  to  dispute  the  state- 

^  Hodson  V.  Union  Pacific  Ry.  Co.,  ment  in  the  record,  or  to  show  that 
14  Utah.  402,  47  P.  859,  60  Am.  St.  it  never  was  filed  among  the  other  re- 
Rep.  902.  cords  of  the  county;   even  though  the 

^  Gross  v.   People,   193   111.   260,   61  indictment  refers  to  it  with  a  prout 

N.   E.   1012,   80   Am.  State  Rep.   322,  patet,  as  remaining  among  those  re- 

and  cases  cited  in  note  page  325.  cords.     R.  v.  Shaw,  R.  &  R.  Cr.  526. 

'Kostenbader   v.   Kuebler,    199   Pa.  *  Missouri,  etc.,  R.  &  R.  Co.   v.   Hol- 

State,  246,  48  A.  972,  85  Am.  St.  Rep.  schlag,   144  Mo.  253,  45  S.  W.  1101, 

783.  66  Am.  St.  Rep.  417. 


698  .    Evidence.  [Ctap.  20 


facts  necessary  to  give  jurisdiction  is  made  in  the  judgment  roll  in 
a  domestic  judgment  when  collaterally  attacked.^  The  presump- 
tion is  that  an  attorney  who  has  entered  his  appearance  for  the 
defendant,  had  authority  to  do  so  and  this  presumption  is  con- 
clusive in  a  collateral  proceeding  as  to  the  judgment  founded  on. 
such  appearance  even  where  no  service  is  had  upon  the  defendant.^ 

A  judgment  against  a  municipality  cannot  be  collaterally  at- 
tacked on  the  ground  tliat  it  is  in  excess  of  the  debt  limit  as  that 
was  a  defense  which  should  have  been  set  up  in  the  judgment.^  So 
a  judgment  cannot  be  attacked  collaterally  on  the  ground  that  the 
complaint  did  not  set  forth  a  cause  of  action/  or  that 
it  grants  relief  not  demanded,^  or  that  the  defendant  was 
not  given  all  the  time  allowed  by  law  after  service  of 
the  summons  in  which  to  plead.^'^  But  where  a  bill  to 
quiet  title  shows  affirmatively  not  only  that  the  plaintiff  had  no 
title  to  quiet,  but  that  title  was  in  the  defendant,  a  decree  for  the 
plaintiff  is  void  and  may  be  attacked  collaterally  under  the  general 
rule  that  where  a  bill  shows  no  cause  of  action  against  the  defend- 
ant with  reference  to  the  subject  matter  of  the  suit,  tenders  no 
issue  with  him,  but,  on  the  contrary,  shows  that  there  could  be  no 
issue  with  him,  a  decree  based  upon  such  bill  is  a  nullity,  no 
matter  how  attacked," 

A  judgment  can  be  attacked  collaterally  only  upon  inspection 
of  the  judgment  roll  and  parol  evidence  is  inadmissible  to  show 
that  no  service  was  really  made  as  therein  stated,^^  and  service 
will  be  presumed  to  be  sufficient,  although  the  proof  of  service  on 
file  was  not  sworn  to  as  required  by  statute,^^  or  although  an  affi- 
davit of  service  omitted  to  state  that  the  party  serving  the  sum- 

»  Gulickson  v.  Bodkin.  78  Minn.  33,  ^^  Hall  v.  Melvin,  62  Ark.  439,  35  S. 

80  N.  W.  783,  79  Am.  St.  Rep.  352.  W.  1109,  54  Am.  St.  Rep.  301. 

'  Corbitt  V.   Timmerman.    95   Mich.  '-  Haupt  v.    Simmington,   27   Mont. 

581,  55  N.  W.  437,  35  Am.  St.  Rep.  480,  71  P.  672,  94  Am.  St.  Rep.  839. 

586.  By  the  return  of  service  the  court  in 

^Edmundson  v.  Independent  School  fact  acquiied  jurisdiction,   for   juris- 

District  of  Jackson,  98  Iowa.  639,  67  diction    includes    the    power    to    hear 

N.  W.  071,  60  'Am.  St.  Rep.  224.  and  determine  the  questions  raised  in 

'Altman  v.  School  District,  35  Ore,  a  case  and  among  these  is  the  ques- 

85,  56  P.  291.  76  Am.  St.  Rep.  468.  tion  whether  the  summons  has  in  fact 

•Mach  V.  Blanchard,  15  S.  D.  432,  been  served.     Bennett  v.  Nelson,   133 

90  N.  W.  1042.  91  Am.  St.  Rep.  698.  Cal.  379,  65  P.  880,  85  Am.  St.  Rep. 

Contra   Russell   v.    Shurtleff,   28   Col.  207. 

414,  65  P.  27,  89  Am.  St.  Rep.  216.  '^  State,     etc.,     Boyle    v.     Superior 

"  Altnian  v.  School  District.  35  Ore.  Court,  Pierce  County,  19  Wash.   128, 

85,  56  P.  291,  76  Am.  St.  Rep.  468.  52  P.  1013.  67  Am.  St.  Rep.  724. 


Sec.  222.]  Public  Documents.  699 

mons  was  over  18  years  of  age  as  required  by  statute.^*  Where 
a  summons  on  which  a  judgment  was  founded  appears  to  have  been 
insufficient,  it  will  be  presumed  that  a  sufficient  summons  was 
subsequently  issued  and  served  where  there  was  ample  time  there- 
for before  the  rendition  of  judgment/^  and  even  where  after  its 
return  there  was  not  sufficient  time  before  the  decree  for  further 
service.^^  But  where  the  record  shows  that  service  was  made  by 
publication,  the  court  will  not  presume  that  personal  service  also 
was  made.^^ 

A  judgment  of  a  federal  circuit  court  may  not  be  attacked  col- 
laterally in  a  State  court,  but  in  a  suit  on  such  judgment,  where  the 
answer  sets  up  that  it  was  obtained  by  fraud  by  a  collusive  trans- 
fer to  a  non-resident  to  give  jurisdiction,  the  State  court  will  try 
the  question  of  fraud.  The  court  seems  to  distinguish  between  a 
defense  which  might  have  been  set  up  in  a  suit  in  which  judgment 
was  rendered  and  a  fraud  practiced  on  the  court  in  obtaining  jur- 
isdiction of  which  the  defendant  had  no  knowledge.^*  Where  a 
judgment  is  rendered  against  two  parties  jointly  liable  as  princi- 
pal and  surety,  and  one  of  the  parties  is  dead  at  the  time  of  the 
rendition  of  the  judgment,  the  judgment  is  absolutely  void  against 
both  and  can  be  collaterally  attacked.^^  A  judgment  sounding  in 
tort  void  as  to  one  of  several  of  the  defendants  jointly  or  severally 
liable  is  not  necessarily  void  as  to  all.^"  It  has  been  held  in  Kansas 
that  a  judgment  rendered  against  a  defendant  after  his  death  is 
absolutely  void  and  can  be  attacked  collaterally.^^  A  judgment 
against  an  infant  rendered  without  the  appointment  of  a  guardian 
ad  litem  as  required  by  statute  is  irreg-ular  but  not  void  and  not 
open  to  impeachment  by  collateral  attack.^ 

A  bill  in  equity  may  be  brought  to  restrain  the  prosecution  of  an 
action  upon  a  judgment  obtained  with  no  service  upon  the  defend- 

"  Burke  v.  Interstate  Savings,  etc.,  tioned   even   in    a   collateral    proceed- 

Association,  25  Mont.  315,  64  P.  870,  ing.    Atlas  National  Bank  of  Chicago 

87  Am.  St.  Rep.  416.  v.  More,   152  111.   528,  38   N.  E.   684, 

»Roo-ers  v.  Miller,  13  Wash.  82,  42  43  Am.  St.  Eep.  274. 

P    525    52  Am.  St.  Rep.  20.  "  Weis  v.  Aaron,   75  Miss.   138,  21 

"  Bradley   v.    Drone,    187    111.    175,  So.  763,  65  Am.  St.  Rep.  594. 

58  N.  E.  304,  79  Am.  St.  Rep.  214.  '"Engstrand  v.  Kleffman,   86  Minn< 

"  Latta  v.  Tutton,  122  Cal.  279,  54  ""403,  90  N.  W.   1054,  91  Am.  St.  Rep. 

P.  844,  68  Am.  St.  Rep.  30.  359,  and  note  p.  362. 

"Wonderly    v.    Lafavette    County.  "  Kager  v.   Vickery,   61   Kan.    342, 

150  Mo.  635,  515  S.  W.  745,  73  Am.  59  P.  628,  78  Am.  St.  Rep.  318. 

St.   Rep.   474.     A  judgment  procured  ^^  Levystein     v.     O'Brien,    106    Ala. 

by   fraud  or  collusion  may   be   ques-  352,  17  So.  550,  54  Am'.  St.  Rep.  56. 


700  Evidence.  [Cliap.  20 

ant  although  the  officer  in  the  original  action  haa  fraudulently 
made  a  return  of  due  service. ^^ 

Sec.  223.  Not  Conclusive  on  Immaterial  Averments. 

A  record  will  not  be  conclusive  as  to  the  truth  of  allegations 
which  were  not  material  nor  traversable.^  Thus  a  party  will  not 
be  estopped  from  averring,  in  an  action  of  debt  on  a  bond,  that  the 
bond  was  made  at  A.,  though  in  a  former  action  on  the  same  bond 
he  averred  it  to  have  been  made  at  B.  f  nor  in  the  case  of  a  convic- 
tion for  a  fslonj,  where  the  jury  has  given  a  general  verdict,  the 
record  will  not  be  conclusive  that  the  offense  was  committed  on  the 
day  mentioned  in  the  indictment,  jor  the  time  is  not  of  the  sub- 
stance of  the  charge;  and  therefore  a  party  interested  to  dispute  a 
forfeiture  (which  in  the  case  of  real  property  relates  to  the  time 
of  the  offense)  may  show  that  the  offense  w^as  committed  on  a  dif- 
ferent day  from  that  alleged  in  the  record.^ 

The  record  of  a  judgment  or  verdict  not  being  liable  to  contra- 
diction as  to  the  truth  of  its  contents,  the  question  as  to  its  admis- 
sibility or  effect  in  evidence  must'  depend  on  the  inferences  at- 
tempted to  be  drawn  from  it.  These  inferences  are  sometimes 
necessary  and  conclusive,  and  sometimes  optional  wath  juries. 
"Where  a  judgment  is  produced  merely  for  the  purpose  of  showing 
that  such  a  proceeding  actually  took  place  (as,  upon  an  indictment 
for  perjury  at  a  trial,  with  a  view  of  showing  that  the  trial  actually 
took  place ),^  the  record  is  conclusive  of  the  fact  that  the  proceed- 
ing did  take  place. 

Sec.  224.  Effect  of  Judgment. 

The  legal  consequences  arising  from  the  simple  fact  of  a  judg- 
ment having  been  pronounced  by  a  court  of  competent  jurisdic- 
tion are  numerous.  In  some  cases,  a  judgment  constitutes  part 
of  a  title ;  in  others,  it  is  used  merely  to  show  a  suit  determined, 
or  to  lat  in  evidence  of  what  w^as  sworn  upon  a  trial,  or  to  justify 

"Dowell  V.  Goodwin,  22  R.  I.  287,  » Ive's  Case,  3  Inst.  230;  Gilb.  Er. 

47    A.    693,     84    Am.    St.    Eep.    842.  230.     See  Co.   Lit.   352   b.;    and  Att. 

Smoot  V.  Judd,  161  Mo.  673,  61  S.  W.  Gen.  v.  King,  5  Pri.  195. 

851.  84  Am.  St.  Rep.  738.  *  See   R.  v.  lies,   Ca.  temp.   Hardw. 

^Co.  Lit.  352  b.,  or  on  a  fact  not  In  118;  R.  v.  Page,  2  Esp.  649  n.     See, 

issue.  also,    B.    N.    P.    243;    R.   v.    Gtordon. 

2  Com.  Dig.,  tit.  Estoppel,  E.,  6.  Car.  &  M.  410. 


Sbc.  224.] 


Public  Documents. 


701 


proceedings  in  execution  of  the  judgment,  or  to  entitle  a  partner 
to  contribution,  or  for  some  other  purpose  to  which  it  is  properly 
applicable  as  a  judgment.     So  a  judgment  may  be  used  to  prove 
the  fact  that  a  party  had  by  process  of  law  been  compelled  to  pay 
damages  to  a  certain  amount;^  but  not  to  prove  the  circumstanced 
under  which  they  were  paid.^     A  judgment    at  least  as  against 
strangers  to  it,  does  not  prove  tlie  existence  of  the  debt  for  which 
it  was  rendered  before  the  entry  of  the  judgment.^     A  judgment 
for  the  payment  of  money  is  prima  facie  evidence  of  the  existence 
of  the  indebtedness  and  tlie  burden  of  proof  is  upon  the  defendant 
to  plead  and  prove  payment.^     Where  a  judgment  is^  recovered 
ao-ainst  two  tortfeasors,  their  liability  is  res  adjuchcata  m  a  subse- 
quent suit  between  them  for  contribution.^     A  judgment  between 
two  parties  is  not  binding  against  the  loser  in  a  subsequent  action 
brought  by  the  successful  party  as  assignee  of  the  claim  of  another 
against  the  loser.«    In  a  suit  on  a  note  given  to  indemnify  sureties 
on  an  official  bond  against  a  loss  suffered  by  the  defalcation  of  the 
principal,  the  judgment  against  the  principal  for  the  amount  ol 
his  defalcation  is  evidence  in  the  absence  of  fraud  or  collusion  ol 
the  amount  of  the  defalcation.^ 


^  Green  v.  Xew   River    Companj^   4 

T.  R.  590.  ^ 

=  See  by  Cresswell,  J.,  6  M.  &  'j-. 

165. 

'Hoerr  v.  Meihofer,  77  Minn.  228, 
79  N  W.  964,  77  Am.  S.  Rep.  674: 
Simmons  v.  Shelton,  112  Ala.  284,  21 
So.  309,  57  Am.  St.  Rep.  39. 

*  O'Brien  v.  Stambach,  101  Iowa,  40, 

69  N.  W.  1133,  63  Am.  St.  Rep.  303. 

"Westfield  Gas,  etc.,  Co.  v.  Nobles- 

ville,  etc..  Co.,  13  Ind.  App.  481,  41  N. 

E.  955,  55  Am.  St.  Rep.  244. 

'  Fuller  V.  Metropolitan  Life  In- 
surance Co.  of  New  York,  68  Conn.  55, 
35  A.  766,  57  Am.  St.  Rep.  84. 

^Bollin  V.  Metcalf,  6  Wyo.  1,  42  P. 
12,  44  P.  694,  71  Am.  St.  Rep.  89S. 

Tlie  celebrated  judgment  of  De 
Grey,  C.  J.,  expressing  the  unani 
mous  opinion  of  all  the  judges,  in 
The  Dutchess  of  Kingston  Case,  20 
How.  St.  Tr.  578,  gives  such  a  clear 
and  comprehensive  view  of  the  gen- 
eral principles  applicable  to  the  sub- 
ject in  hand  that  it  will  be  desirabl;^. 
to  give  a  portion  of  it  here.  He 
said:  "What  has  been  said  at  the  bar 
is  certainly  true,  as  a  general  prin- 


ciple, that  a  transaction  between  two 
parties,  in  judicial  proceedings,  ougut 
not  to  be  binding  upon  a  third;  for  it 
would  be  unjust  to  bind  any  person 
who  could  not  be  admitted  to  make  a 
defense,   or  to  examine  witnesses,   or 
to  appeal  from  a  judgment  he  might 
think    erroneous;    and    therefore    the 
depositions    of    witnesses    in    another 
cause  in  proof  of  a  fact,  the  verdict 
of   a   jury   finding  the   fact,   and  the 
judgment    of    the    court    upon    fact^ 
found,  although  evidence  against  the 
parties  and  all  claiming  under  them, 
are  not,  in  general,  to  be  used  to  the 
preiudice  of  strangers.  There  are  some 
exceptions  to  this  general    rule,  found- 
ed upon  particular  reasons,  but  not  be- 
ing applicable  to  the  present  subject  it 
i3°unnecessary  to  state  them.     From 
the  variety  of  cases  relative  to  judg- 
ments being  given  in  evidence  in  civil 
suits,  it  may  be  stated:    First,  that  a 
judgment    of    a    court    of    concurrent 
jurisdiction,  directly  upon  the  point, 
is,  as  a  plea,   a  bar,  or,  as  evidence-, 
conclusive,  between  the  same  parties, 
upon  the  same  matter  directly  in  ques 
tion  in  another  court.    Secondly,  that 


702  Evidence.  [Cihap.  20 

Sec.  225.  Distinction  Between  Judgments  of  Courts  of  Exclusive 
and  Concurrent  Jurisdiction. 

A  much  more  conclusive  effect  is  attributed  to  the  judgments 
of  courts  of  exclusive  jurisdiction  than  to  the  judgments  of  courts 
which  have  only  concurrent  jurisdiction.  With  regard  to  the 
parties  between  whom  they  are  to  be  used,  and  the  matter  to  which 
they  relate,  these  two  classes  of  judgments  are  put  upon  the  same 
footing,  and  subject  to  the  same  limitation  and  restriction;  the 
matter  must  be  the  same,  the  parties  also  the  same.  But  in  one 
important  particular  they  differ,  that  is,  with  reference  to  the 
occasion  and  the  manner  in  which  it  is  proposed  to  use  them.  It  is 
only  upon  a  matter  directly  in  question  that  the  judgment  of  a 
court  of  concurrent  jurisdiction  is  conclusive — while  the  judg- 
ment of  a  court  of  exclusive  jurisdiction  is  conclusive,  not  only 
when  the  matter  comes  in  question  directly,  but  also  when  it  comes 
incidentally  in  question.  This  difference  in  the  effect  of  the  judg- 
ments arises  from  the  difference  in  the  constitution  of  the  courts 
which  pronounce  them.  When  a  matter,  over  which  some  other 
court  is  allowed  to  have  exclusive  jurisdiction,  comes  in  question — 
whether  directly  or  incidentally — and  the  judgment  of  such  a 
court  is  offered  in  evidence  as  proof  of  the  matter,  it  must  neees- 

the  judgment  of  a  court  of  exclusive  id.  435;  Tabor  v.  Perrott,  2  Gall.  (U. 
jurisdiction,  directly  upon  the  point.  S. )  565;  Twambly  v.  Henley,  4  Mass. 
is  conclusive  upon  the  same  matter,  441 ;  Respublica  v.  Davis,  3  Yeates 
between  the  same  parties,  coming  in-  (Penn. ),  128;  Johnson  v.  Bourn,  1 
cidentally  in  question  in  another  Wash.  (U.  S.)  187;  Stevelie  v.  Read, 
court  for  a  different  purpose.  But  3  Wash.  (U.  S.  C.  C.)  247;  Cleaton  v. 
neither  the  judgment  of  a  concurrent  Chambliss.  6  Rand.  (Va.)  86;  Neal 
or  exclusive  jurisdiction  is  evidence  v.  McComb,  2  Yerg.  (Tenn.)  10,  12; 
of  any  matter  which  came  collater-  Blount  v.  Darrach,  14  S.  &  R.  (Penn.) 
ally  in  question,  though  within  their  184,  186,  note;  Este  v.  Strong,  2 
jurisdiction,  nor  of  any  matter  in-  Hamm.  (Ohio)  401;  Fisk  v.  Weston, 
cidentally  cognizable,  nor  of  any  mat-  5  Me.  410;  Cowles  v.  Harts,  3  Conn, 
ter  to  be  inferred  by  argument  from  516;  James  v.  Stookey,  1  Wash.  (U. 
the  judgment."  This  principle  is  S.  C.  C.)  530;  Chapman  v.  Chap- 
universally  acknowledged.  See  Bur-  man,  1  Munf.  (Va.)  398;  Frazier  v. 
rill  V.  West,  2  N.  H.  190;  Wood  v.  Frazier,  2  Leigh  (Va.),  042.  650; 
Davis,  7  Cranch  (U.  S.),  271;  Davis  Munford  v.  Overseers,  2  Rand.  (Va.) 
V.  Wood,  1  Wheat.  (U.  S.)  6;  Payne  313,  318;  Floyd  v.  Mintsey,  5  Rich. 
V.  Coales,  1  Munf.  (Va.)  373;  Turpin  (S.  C.)  361;'Riggins  v.  Brown,  12 
V.  Thomas,  2  H.  &  M.  (Va.)  139;  Geo.  271;  Persons  v.  Jones,  id.  371; 
Jackson  v.  Vedder,  3  Johns.  (N.  Y.)  Michan  v.  Wyatt,  21  Ala.  813;  Fallon 
8;  Case  v.  Reeves,  14  id.  79;  Ryer  v.  v.  Murray,  16  Miss.  168;  Duncan  v. 
Atwater,  4  Day  (Conn.),  431;  Killins-  Helms,  8  Gratt.  (Va.)  68.  See,  also, 
worth  V.  Bradford,  2  Overt.  (Tenn.)  Rapelve  v.  Prince,  4  Hill  (N.  Y.), 
204;  Wood  v.  Stephen,  1  S.  &  R.  119 ;  Alexander  v.  Taylor,  4  Denio  (N. 
(Penn.)    175;  Estep  v.  Hutchman,  14  Y.),   302. 


Sec.  226.] 


Public  Documents. 


703 


sarily  be  co7iclusive;  implicit  credit  must  be  given  to  a  court,  so 
constituted,  Avhile  its  judgment  is  unreversed  and  in  full  force; 
for  the  court  in  which  the  particular  matter  is  to  be  proved  has 
no  autliority  to  examine  into  the  merits  of  the  judgment,  and 
must  take  the  matter  as  judicially  and  conclusively  decided. 

Sec.  226.  Judgments  In  Rem. 

There  is  another  class  of  judgments  which  are  technically 
termed  judgments  in  rem.;  and  tliese  are  conclusive,  not  only  as 
against  parties  and  privies,  but  also  as  against  strangers.  A  judg- 
ment in  rem  may  perhaps  be  defined  to  be  the  judgment  of  a  court 
of  exclusive  or  at  least  peculiar  jurisdiction,  declaratory  either  of 
the  nature  ^nd  condition  of  some  particular  thing,  or  of  the  condi- 
tion and  status  of  some  particular  person.^ 

A  judgment  in  rem  in  our  law  may  properly  be  so  termed  when 
it  is  the  sentence  of  a  court  declaring  the  nature  or  quality  of  a 
particular  thing;  e.  g.,  tiie  decision  of  the  court  of  admiralty  de- 


^  This  definition  is  by  no  means  put 
forward  as  a  perfect  one.  Mr.  Smith 
defined  a  judgment  in  rem  to  be, 
"an  adjudication  (as  its  name  indeed 
denotes)  upon  the  status  of  some  par- 
ticular subject  matter,  by  a  tribunal 
having  competent  authority  for  that 
purpose."  Smith's  Lead.   Ca.   439. 

And  he  takes  exception  to  the  infer- 
ence  to   be    draAvn   from   some   dicta, 
that  such  a  judgment  must  be  one  of 
a  court  of  exclusive  jurisdiction.  ^'Th3 
universal  effect,"  he  says,  "of  a  judg 
ment  in  rem  depends,  it  is  submitted, 
on   this   principle,   viz.,   that   it   is   a 
solemn    declaration,    proceeding   from 
an  accredited  quarter,  concerning  the 
status  of  the  thing  adjudicated  upon; 
which    very    declaration    operates   ac- 
cordingly upon  the  thing  adjudicated 
upon,  and  ipso  facto  renders  it  such 
as  it  is  thereby  declared  to  be."     And 
he  afterward  "says:     "And  it   is  sub- 
mitted,    that     this     must     be     Lord 
Coke's  meaning  where  he  states  in  1 
Inst.   325    b.   that   'where   tlie    record 
of  the  estoppel   doth  run  to  the  dis- 
abilitie  or  legitimation  of  the  person, 
there  all  strangers  take  benefit  of  that 
record,     as     outlawrie,     excommenge- 
inent,    profession,    attainder   of   prae- 
munire,  dc,    felonic,    dcc-,    hastardie, 


muliertie,  and  shall  conclude  the  par- 
ties, though  they  be  strangers  to  tho 
record.'  In  all  these  cases,  it  will  be 
observed,  the  record  operates  upon 
the  status  of  the  individual."  But 
it  is  also  to  be  observed,  that  in  all 
these  cases,  the  judgment  is  that  of  a 
court  of  exclusive,  or  at  least,  peculiar 
jurisdiction. 

The  term  "  judgment  in  rem  is, 
perhaps,  in  strictness,  objectionable 
when  applied  to  the  status  of  a  person. 
The  term  itself  is  probably  derived 
from  the  civil  law.  where  actions  were 
classed  as  actiones  in  personam  and 
actiones  in  rem;  the  former  including 
actions  upon  contract  or  for  injuries 
("ex  contractu  vel  ex  maleficio")  ; 
the  latter  referring  to  actions  in 
which  some  particular  thing  was  the 
subject-matter  of  the  controversy 
("cum  Tnovet  alicui  de  aliqua  re  con- 
troversiam').  Inst.  lib.  4,  tit.  16,  § 
1.  The  distinctive  difference  betweea 
these  actions  and  our  "  personal  and 
real  actions,"  is  known  to  every  law- 
yer. Under  the  Roman  law,  there- 
fore, a  judgment  in  rem,  generally, 
was  "ut  rem  ipsam  restituat  (posses- 
17,  §  2. 
sor)   cum  fructiius."    Inst.  lib.  4,  tit 


704  Evidence.  [CbaiD.  20 

daring  a  vessel  to  be  a  lawful  prize;  or  a  judgment  of  condemna- 
tion for  forfeiture,  under  the  excise  laws  bv  the  court  of  ex- 
chequer. Where,  however,  the  judgment  declares  tlie  condition  or 
status  of  a  person,  it  would  seem  to  be  more  properly  termed  a 
judgment  quasi  in  rem. 

Sec.  227.  Proceedings  Between  Strangers. 

Proceedings  between  persons  who  are  strangers  to  the  suit  are 
considered  res  inter  alios  actae;  and  they  are  not  admissible,  even 
though  they  are  offered  not  for  the  purpose  of  binding  a  party  to 
the  suit,  but  merely  as  evidence  of  some  collateral  fact. 

Sec.  228.  Rule  With  Reference  to  Real  and  Nominal  Parties. 

But  in  the  same  manner  as  admissions  may  be  used  against  the 
real  parties  to  a  suit,  though  they  are  not  the  nominal  parties  to  the 
record,  it  has  been  held  that  verdicts  and  judgments"  are  receivable 
in  evidence  against  the  parties  on  whose  account  the  suits  in  which 
the  judgments  were  obtained  were  instituted  or  defended.^ 

Sec.  229.  Rule  as  to  Judgment  in  Ejectment. 

Upon  the  ground  that  the  lessor  of  the  plaintiff  and  the  tenant 
are  substantially  the  real  parties  to  an  ejectment,  a  judgment  in 
ejectment  is  admissible  evidence  in  an  action  for  mesne  profits, 
and  this,  whether  the  action  be  brought  by  the  nominal  plaintiff, 
or  by  the  lessor  of  the  plaintiff,  and  whether  the  judgment  be  upon 
verdict  or  by  default;  but  the  judgment  is  not  conclusive,  unless 
pleaded  by  way  of  estoppel.^     It  seems  to  be  settled  also,  that  a 

^  Upon  this  principle,  the  equitable  notice  in  the  former  suit  was  served 

assignee  of  a  chose  in  action  has  been  upon  the  party  in  the  latter,  though 

estopped  by  a  verdict  and   judgment  the  name  was  different,  and  that  he 

thereon,  in  the  same  manner  as  if  ho  appeared   in   such    suit   and   attended 

were  a  party  to  the  record,  the   suit  the    taking    of     depositions     therein, 

having  been  prosecuted  in   the  name  Stevelie  v.  Reid.  2   Wash.    (U.   S.   C. 

of  another  for  his  benefit,  and  at  his  C.)    274.        Contra,   Allen   v.   Hall.    1 

request     and     expense.        Rogers     v.  Marsh.   (Ky.)   526.     The  former  judg- 

Haines,  3  Me.  362.     Where  the  same  ment    is    not    admissible    unless    ren- 

person   was,   in   fact,   a   party   to   the  dered  in  an  action  between  the  same 

former   suit,   having  been    sued   by  a  parties.     Mersereau  v.  Pcarsall,  19  N". 

wrong   name,   the   mere   misnomer    is  Y.  108. 

not  sufficient  to  prevent  the  adrtiission  '  Doe  v.  Huddart,  2  C.  M.  &  R.  316. 

of  the  record  in   evidence;  the  parol  And    see    Lewes    v.    Preece,    1    Tyrw. 

proof  will  be  received  to  show  that  410;  B.  N.  P.  87,  232;  Doe  v.  Har- 


S3C.  230.] 


Public  Documents.  '05 


judgment  recovered  by  the  defendant  against  the  same  lessor  of 
the  "plaintiff  in  a  former  ejectment,  is  admissible  in  evidence  on 
the  trial  of  a  second  ejectment  by  the  same  lessor  of  the  plaintiff.^ 
A  judgment  is  in  no  case  conclusive,  imless  pleaded  by  way  of 
estoppel.  It  could  not  be  pleaded  in  ejectment,  because  the  de- 
fendant is  bound  by  the  terms  of  the  consent  rule  to  plead  not 
guiltv ;  but  if  the  parties  are  the  same,  it  is  evidence  to  go  to  the 
jury.''  A  landlord  is  not  bound  by  a  judgment  against  his  tenant 
in  ejectment  brought  to  try  title,  although  the  tenant's  attorney 
was  employed  by  the  landlord  and  the  tenant  took  no  part  in  the 
case,  if  the  landlord  did  not  appear  as  a  party  of  record.^ 

A  judgment  in  ejectment  for  the  plaintiff  covering  certain  land 
is  not  evidence  in  a  subsequent  action  between  the  same^  parties 
concerning  other  land  which  was  claimed  in  the  first  action  and 
which  was  omitted  from  the  verdict  as  appears  by  parol  testimony 
because  the  plaintiff  failed  to  prove  title  to  it.  This  land  is  not 
included  in  the  judgment  and  therefore  the  judgment  cannot  be  a 
bar  as  to  it.* 

Sec.  230.  When  the  Parties  are  the  Same,  but  not  Suing  in  the 
Same  Right. 

Though  the  individual  be  the  same  in  the  two  suits,  yet  if  he 
stood  in  a  different  relation  or  character  on  the  two  occasions,  he 
will  not  be  affected  by  a  verdict  or  judgment  in  the  first  suit. 
This  doctrine  has  been  established  in  regard  to  estoppels.^  A  judg- 
ment against  a  party  in  his  individual  capacity  is  not  binding  upon 

low    12  Ad.  &  El.  42,  n.     In  ejectment  judgment      will      be      as      conclusive 
between  A.  &  B.,  the  record  of  a  for-  against  him  as  if  the  issue  had  beert 
mer   judgment   in   an   action   of  tres-  corrected.  Bailey  v.  Fairplay,  6  Binn. 
pass  "between   B.   and   the   cestui   que  (Penn.)   405.                        ^      ,,     „    r, 
trust  of  A.    has  been  held  admissible  ^Strode  v.   Seaton,   2   C,   M.   &    K. 
in  Pennsylvania.     Calhoun's  Lessee  v.  731.     See  B.  N.  P.   232;   4  Bac.  Ab.. 
Dunning,'  4  Ball.    (Penn.)    120.     This  tit.    Evidence,   F.      See,   also,   Wngnt 
was  upon  the  ground  that  the  parties  v.  Tatham,  1  Ad.  &  El.  19. 
were    really,    though    not    noniinallv,  '  Loftis  v.  Marshall,    134   Cal.   394, 
the   same  In  both   suits.     See  Rogers  66  P.  571,  86  Am.  St.  Rep.  286. 
V.  Haines,  6  Greenl.   362.   cited  ante,  ^  Lake  v.   Hancock,   38   Fla.   53,  20 
note,  255.     The  omission  to  strike  out  So.  811,  56  Am.  St.  Rep.  159. 
the   name  of   the  casual   ejector,  and  'A   woman   is   not    estopped,    after- 
insert  that  of  the  real   defendant,  is  coverture,  by  an  admission  on  record 
amendable   after   verdict;   and   if   the  by   her    husband    and    herself   during 
real   defendant   enters   into   the   com-  coverture:    and   an  heir,  claiming  as 
mon  rule,  proceeds  to  trial,   &c.,  the  heir  of  his  father,  is  not  estopped  by 

45 


TOG 


EvIDEI^-CE.  [Ciiap.  20 


him  in  another  suit  involving  the  same  facts  in  which  he  appears 
in  a  representative  capacity,  so  a  judgment  against  one  sued  in  a 
representative  capacity  does  not  bind  him  in  a  subsequent  action 
brought  by  or  against  him  as  an  individual.^  ^^^lere  a  wife  brings 
suit  for  personal  injuries  and  her  husband  is  joined  as  a  nominal 
party,  the  judgment  in  that  suit  is  not  a.  bar  to  another  suit  by 
him  in  his  own  right,  for  loss  of  the  services  of  his  wife,  resulting 
from  the  injury.  This  case  was  decided  under  the  general  rule 
that  no  party  is  bound  by  a  judgment  unless  his  opponent  would 
have  been  affected  by  it  adversely  if  it  had  been  determined  the 
other  way.^  A  judgment  against  a  party  as  trustee  is  not  binding 
upon  him  in  a  subsequent  suit  against  him  as  guardian."  A  judg- 
ment for  the  defendant  in  a  suit  brought  in  the  name  of  a  father 
for  personal  injuries-  suffered  by  his  minor  son,  is  not  a  bar  to  a 
subsequent  suit  brought  by  the  father  in  his  own  right  for  loss  of 
services  and  medical  expenses  of  his  son  arising  out  of  the  same 
accident.^  The  general  rule  does  not  apply  to  a  case  where  the 
plaintiff  uses  a  record  in  a  former  suit  against  the  defendant, 
whom  he  is  suing  for  negligence  as  his  servant  or  agent,  not  to 
prove  the  fact  of  the  injury  or  negligence  (for  the  record  is  not 
admissible  for  that  purpose),  but  merely  to  prove  the  amount  of 
damages  which  he  has  been  compelled  by  law  to  pay  to  another 
person  (the  plaintiff  in  the  former  recorded  suit).^ 

an  estoppel  upon  him   as  heir  to  hi?  61   Minn.  549,   52   Am.   St.  Rep.   618, 

mother.     Com.  Dig.,  tit.  Estoppel,  C.  63  N.  W.   1116. 

.  A  party  suing  as  executor  in  an  ac-  » Green  v.   New  River   Company,   4 

tion  of  debt  upon  a  bond  will  not  be  T.    R.    590.     See,    also,    Pritchard   v. 

estopped  by  having  been  barred  in  an  Hitchcock,  6  M.  &  G.  164. 

action  upon  the  same  bond  when  he  In  debt  by  A.  against  B.  and  C,  op 

'sued   as   administrator;  but    he   may  a  joint  and   several   bona,  the  condi- 

show  that  the  letters  of   administra-  tion  of  which,  after  reciting  that  C. 

tion  have  been   since  repealed.     Rob-  had  been  appointed  collector  of  taxes, 

inson's  Case,  5  Coke,  32   b.  and  that  A.  had  agreed  to  become  hia 

*  First    National    Bank    v.    Shuler,  surety,  was  that  B.  and  C.  should  m- 

153  N.  Y.  163,  47  N.  E.  262,  60  Am.  demnify  A.  from  all  costs  and  charges 

St.   Rep.   601;      Sonnenberg  v.   Stein-  which  he  should  incur  in  consequence 

bach,   9  S.  D.   518,   62   Am.   St.   Rep.  of  his  becoming  such  surety;   the  dec- 

885.  laration  alleged  that  C.  had  made  de- 

» Walker    v.    City    of    Philadelphia,  fault   in    not   paying   over    a   sum   of 

195  Penn.  St.  168.  45  A.  657,  78  Am.  money  to  the  receiver-general,  and  aa- 

St.  Rep.  801.  signed  for  breach,  that  by  reason  of 

^  State  V.  Branch.   134  Mo.  592.  36  such   default   A.    had   been   compelled 

S.  W.  226,  56  Am.  St.  Rep.  533.     See,  to  pay   £500   to   the   receiver  general ; 

also.    Morrison    v.    Clark.    89    Maine,  it  was  held  that  the  mere  production 

103,  35  A.  1034,  56  Am.  St.  Rep.  395.  of    a    judgment    signed    against    A., 

"  Bamka  v.  Chicago,  etc.,   Ry.   Co.,  under  a  judge's  order,  for  £500,  at  the 


Sec.  231.] 


Public  Documejstts.  '^07 


Sec   231.  As  to  What  Matters  a  Judgment  Concludes  a  Party. 

\  judgment  concludes  ths  parties  only  as  to  the  grounds'  cov- 
ered hy  it  and  the  facts  necessary  to  uphold  it.    They  will  not  be 
allowed  to  prove  what  is  inconsistent  with  its  rectitude  and  justice, 
for  while  it  stands  unreversed,  it  is  final  as-  to  the  points  decided ; 
not  so,  however,  with  respect  to  matters  which  the  judgment  itseli 
shows  were  not  in  question;  and  hence,  where  the  cause  has  gone 
off  upon  some  defect  which  precluded  an  inquiry  into  the  merits, 
the  judgment  is  us'ually  no  bar  to  a  second  action.    So  the  reversal 
of  a  judgment  proves  nothing  but  its  own  correctness;  it  operates 
no  farther  than  to  nullify  what  has  been  done;  and  in  other  re- 
spects the  parties  are  generally  left  by  it  in  the  same  situation,  as 
to  theii-  rights  and  remedies  touching  the  matter  m  controversy, 
as  if  no  such  judgment  had  ever  existed.     Therefore,  where  a  de- 
cree of  the  supreme  court  of  probate  reversed  that  of  the  inferior 
court  decreeing  distribution,  such  reversal  was  held  no  bar  to  a 
bill  in  chancery  for  the  same  matter.^     And  upon  the  same  prin- 
ciple the  dismissal  of  a  bill  in  chancery  is  not  always  conclusive 
as  to  the  complainant's  right  in  a  court  of  law,  ahhough  the  bill 
may  have  been  filed  for  the  same  matter ;  for  if  the  complainant 
seeks  in  a  court  of  equity  to  enforce  a  strictly  legal  title  when  his 
remedy  is  at  law,  the  dismissal  of  the  bill  amounts  merely  to  a 
declaration  that  he  has  no  equity ;  but  it  casts  no  reflection  upon  his 
legal  title,  it  decides  nothing  in  relation  to  it  and  consequently  can 
conclude  nothing.^     And  though  a  decree  in  express  terms  pro- 
fesses to  affirm  a  particular  fact,  yet  if  such  fact  was  immaterial 
in  the  case,  the  decree  will  not  conclude  the  parties  in  relation 

to  it.^ 

Where  the  cause  and  object  of  both  actions  are  the  same,  a  judg- 
ment in  the  prior  bars  the  subsequent  suit.  Where  the  cause  or 
object  of  the  actions  are  different,  though  the  point  in  dispute  is 
the  same  in  both,  the  prior  judgment  is  no  bar  to  the  subsequent 
action,  but  the  verdict  is  matter  of  evidence  to  prove  such  point. 

suit  of  the  receiver-general,  was  not  Pet.    (U.  S.  C.  C.)    198;  Pleasants  v. 

evidence    of    the    amount    of    damage  Clements,    2   Leigh    (Va.),    474,    483. 

sustained  by  A.  in  consequence  of  his  See    Burchet    v.    Faulkner,    1     Dana 

suretyship.     King  v.  Norman,  4  C.  B.  (Ky.).   99,    100;  Lancaster  v.   Lair'?, 

884,  id.   109. 

'Harvey  v.   Eichards,   2   Gall.    (U.  » Hotchkiss  v.  Nichols,  2  Day,  138; 

g  )   210.  Coit  v.    Tracy,   8   Conn.   268;  People 

'Lessee   of  Wright   v.   Deklyne,    1  v.  Johnson,  37  Barb.   (N.  Y.)  502. 


708 


Evidence. 


[Cliap.  20 


But  although  a  prior  judgment  may  be  no  bar,  strictly  and  tech- 
nically speaking,  where  the  cause  or  object  of  both  actions  are  not 
identical,  it  does  not  follow  that  either  party  in  the  second  action 
can  be  allowed  to  contradict  what  was  expressly  adjudicated  in  the 

first." 

Indeed  ths  principle  will  be  found  to  run  through  nearly  all 
the  American  cases,  that  the  judgment  of  a  court  of  competent 


*  Betts  V.  Starr,  5  Conn.  550. 
In  a  case  before  the  United  States 
Supreme    Court,    Hopkins-  v.    Lee,    o 
Wheat.    (U.   S.)    109,  the   facts  were 
that    Lee    sold    Hopkins    an    estate, 
called   "  Hill    and  Dale,"   then   under 
certain      incumbrances,      which      Lee 
agreed  to   remove;   and  Hopkins  was 
to  pay  therefor  $1,800,  partly  in  mili- 
tary lands  and  partly  in   some  other 
way,    as    soon    as    the    incumbrances 
were  removed.       Hopkins  filed  a  bill 
in  chancery  against  Lee,  stating  that 
Lee  had  omitted   to   pay   the    incum- 
brances,  and   that    he,   Hopkins,   had 
been   compelled   to   pay   them.     Upon 
hearing  the  bill,  the  court  found  that 
Hopkins     had     satisfied     the     incum- 
brances, but   with  the  funds   of  Lee, 
advanced  for  that  purpose,  and  there- 
upon   decreed    that    Hopkins    should 
pay    Lee   the   overplus    remaining   in 
his  hands  after  paying  off  the  incum- 
brances.    Lee  then  brought  an  action 
of  covenant  against  Hopkins   for  not 
conveying   the    military   lands    agree- 
able to  covenant;    to   which   Hopkin=? 
pleaded  that  Lee  had  never  discharged 
the  incumbrances  on  the  estate  of  Hill 
and  Dale.     Said  the  court:   "  Xo  law- 
yer  can   suppose   that,   let  the    judg- 
laient  or  decree  on  the  bill  in  chancery 
have  been  either  way,   it   could  have 
been  pleaded  in  bar  to  the  last  action 
of  covenant  brought   by  Lee   against 
Hopkins.      The    object    of   the  bill  i.-i 
chancery  was  to  get  refunded  money, 
which  the  purchaser  of  an  estate  al- 
leged that  he  had  been  obliged  to  ex- 
pend, to  free  the  estate  from  incum- 
brances which  the  seller  was  bound  to 
remove.     The  object  of  the  action  at 
law  was  to  recover   damages  for  not 
conveying   the    military    land,    which 
were   to   be   taken   in   part   payment. 
Nothing    could   have    been    more   dis- 
tinct than  the  object  of  the  two  suits; 


they  were  not  for  the  same  matter, 
cause  and  thing,  and  let  the  issue  of 
the  bill  in  chancery  have  been   as  it 
might,  the  decree  could  not  have  been 
pleaded  in  bar  of  the  action  at  law. 
But  by  way  of  evidence,  the  decree  in 
chancery  was  held  conclusive  to  prove 
that  Lee   had   discharged  the   incum- 
brances on  the  estate,  that  being  the 
matter   directly   adjudicated   upon   in 
the  suit  in  chancery."     And  where  a 
mortgagee    brought   ejectment   to    re- 
cover   the    mortgaged    premises,    and 
the  mortgagor,   on   the   trial,  offered 
evidence  to  prove  that  the  note  which 
the  mortgage  was  intended  to  secure 
was  usurious  and  void;   to  which  the 
mortgagee    objected,    on    the    ground 
that  the   mortgagor  was   estopped  to 
show  the  alleged  fact,  by  reason  of  a 
former  judgment;   the  record  of  that 
judgment   was   produced,    and   it    ap 
peared    from    it   that    the    mortgagee 
had  sued  the  mortgagor  on  the  note, 
that   the   latter   had    pleaded   non-as- 
sumpsit   therein    with    notice   of    the 
usury,  and  that  a  verdict  and   judg- 
ment   were    rendered    for  t  he    mort- 
gagor.    It  was  conceded  that  the  solo 
question  litigated   in  the  former  suit 
was  the  same  sought  to  be  again  con- 
troverted   in    the    last.       The    judge 
thereupon     sustained     the     objection, 
holding  the  first  judgment  conclusive 
in  relation  to  the  usury;   and  the  Su- 
preme Court  afterward,  on  motion  for 
a    new    trial,    affirmed    the    decision. 
Betts    V.    Starr,    ante.        So,    though 
nothing    can    certainly    be    more    dis- 
tinct than  the  object  of  an  ejectment 
in   England,   and   the   action   of   tres- 
pass on  the  case  for  mesne  profits,  yet, 
the  judgment  in  ejectment  is  conclu- 
sive against  the   defendant  upon  the 
right  of  possession,  at  the  time  of  the 
demise  laid  in  the  declaration. 


Ssc.  231.]  Public  Documejstts.  709 

jurisdiction  directly  upon  a  particular  point  is,  as  between  the 
parties,  conclusive  in  relation  to  such  point,  though  the  purpose 
and  subject-matter  of  the  two  suits  be  different;  and  hence  that  a 
judgment  may  not  only  be  evidence  but  conclusive  evidence^  and 
still  be  no  bar  to  a  second  action.^  A  former  suit  is  a  bar  only 
to  such  claims  or  matters  as  might  have  been  litigated  under  the 
pleadings  and  issue  as  made.^  It  is  not  a  bar  as  to  matters  which 
might  have  arisen  incidentally  or  collaterally,  such  as  a  payment 
made  on  a  demand.^  Nor  as  to  an  allegation  in  the  complaint  in 
such  former  action,  the  truth  of  which  was  not  involved  in  the 
judgment  rendered.^  Nor  will  a  judgment  by  default  on  one  of 
two  notes,  given  upon  an  illegal  contract,  preclude  the  defendant 
from  interposing  his  defense  to  an  action  on  the  second  note.* 
Where  an  item  is  duly  pleaded  in  a  previous  suit,  the  judgment  is 
binding  as  to  it,  whether  or  not  the  party  there  introduced  evi- 
dence to  prove  the  item  in  question.^*^  A  judgment  involving  the 
right  of  a  party  to  inherit  land  as  heir,  is  conclusive  in  a  subse- 
quent proceeding  involving  his  right  to  inherit  personal  property 
from  the  same  person.^^  When  a  decree  of  dismissal  of  a  bill  in 
equity  is  unqualified  with  no  words  such  as  "  without  prejudice," 
the  decree  is  conclusively  presumed  to  have  been  upon  the  merits 
and  is  an  official  determination  of  the  controversy.  So,  where  in  a 
suit  involving  the  title  to  certain  bonds  a  bill  in  equity  to  obtain 
the  same  bonds  had  been  previously  dismissed  and  the  court  there 
discusses  both  the  title  to  the  bonds  and  the  question  whether  it 
had  jurisdiction  in  equity  and  it  does  not  appear  on  which  ground 
the  court  dismissed  the  bill,  it  will  be  presumed  that  it  was  dis- 
missed on  the  merits  where  both  the  merits  and  the  question  of 
jurisdiction  were  found  adversely  to  the  plaintiff  in  the  opinion.^^ 
But  where  the  principal  question,  upon  which  the  plaintiff's  right 

■'Betts     V.      Starr,      5     Conn,  550;  ^  Smith  v.  Weeks,  26  Barb.   (N.  Y.) 

Wright  V.  Deklyne,  1   Pet.    (U.  S.  C.  463. 

C.)    198;   Starkie  v.  Woodward,  1   N.  «  Sweet  v.  Tuttle,  14  N.  Y.  465. 

&   M'Cord    (S.    C),    329;    Canaan   v.  "Hughes  v.  Alexander,  5  Duer   (N, 

Greenwoods  Turnpike  Co.,  1  Conn.  1;  Y. ),  488. 

Cist  V.   Zeigler,    16   S.   &  R.    (Penn.)  '"O'Brien  v.  Manwaring,   79  Minn, 

282;   Gardner  V.  Buckbee,  3  Cow.   (N.  86.   71   N.   W.   746,   79   Am.   St.   Rep. 

Y.)    120;   Wright  v.  Butler,  4  Wend.  426. 

(N.  Y.)   284.  "Watson  v.  Richardson,  110  Iowa, 

'Burdick  v.  Post,  12  Barb.   (N.  Y.)  698,  80  N.   W.  416,  80  Am.  St.  Rep. 

168;   Bates   v.    Stanton,    1    Duer    (N.  331. 

Y.),  79.  "Martin  v.  Evans,  85  Maryland,  8, 

36  A.  258,  60  Am.  St.  Rep.  292. 


710  EviDEJfCE.  [Chap.  20 

to  recover  depends,  has  been  determined  in  a  former  action,  such 
former  adjudication  will  bs  held  conclusive  in  a  new  action  on  one 
of  several  securities  springing  out  of  the  same  transaction.^^  A 
judgment  refusing  payment  of  one  installment  of  a  certain  assess- 
ment on  the  ground  of  its  invalidity  is  conclusive  of  another  pro- 
ceeding to  enforce  another  installment  of  the  same  assessment.^^ 
To  render  a  judg-ment  a  bar  to  an  action  it  must  appear  plainly 
that  the  matter  taken  up  in  the  second  suit  was  decided  in  the 
first  as  if  there  is  any  doubt  the  matter  is  not  res  judicata.  So 
where  a  demurrer  to  a  complaint  was  sustained  by  a  general  order 
and  the  demurrer  contained  three  gi'ounds  it  is  uncertain  on  what 
ground  the  demurrer  was  sustained  and  therefore  the  order  is 
not  binding  as  to  any  one  particular  ground.^"*  Where  a  complaint 
does  not  claim  damages  for  negligence  but  the  two  defendants  in 
the  action  assert  and  claim  negligence  against  each  other  the  plain- 
tiff in  a  later  action  is  not  bound  by  the  adjudication  of  the  court 
on  the  subject  of  negligence.  A  judgment  is  res  judicata  only  as  to 
the  point  actually  litigated  arid  determined  in  the  original  account 
and  not  as  to  what  might  have  been  litigated  and  determined. ^^  So 
where  a  plaintiff  applied  for  a  writ  of  mandamus  to  compel  the 
payment  of  his"  salary  for  certain  months  and  a  previous  similar 
application  for  payment  of  his  salary  for  other  months  had  been 
decided  in  favor  of  the  plaintiff,  still  that  does  not  preclude  the 
defendant  from  setting  up  the  unconstitutionality  of  the  statute 
under  which  the  plaintiff  claims  his  salary  when  it  does  not  appear 
from  the  record  that  the  question  of  constitutionality  was  set  up 
in  the  first  action  although  it  might  have  been."  A  judgment  by 
default  for  services  is  no  bar  to  an  action  by  the  defendant  for 
damages  caused  by  malpractice  or  other  negligence  of  the  judg- 
ment plaintiff. ^^  The  defendant  in  a  judgment  to  foreclose  a 
mortgage  is  not  precluded  from  bringing  a  separate  action  to  re- 
cover payments  made  during  the  pendency  of  the  first  action  by 

""Birkhead  v.  Brown,  5  Sandf.    (N.  "Freeman  v.  Barnum.  131  Cal.  386, 

Y.)   134.  63  P.  691,  82  Am.  St.  Rep.  355. 

"Markle7   v.    People.    171    111.   260,  '^Jordahl  v.    Berry.   72   Minn.    119. 

49  X.  E.  .502.  63  Am.  St.  Rep.  234.  7.5   N.   W.    10,  71   Am.   St.   Rep.   469, 

■=  Kleinschmidt  v.  Binzel,  14  Mont.  discussing   the    conflict    of   authority 

31.  37  P.  .5.  43  Am.  St.  Rep.  604.  See,  on  this  question  and  dissenting  from 

also,   Courtney   v.   William   Knabe   &  the   New  York  doctrine   as  set   forth 

Co.  Mfg.  Co.,  97  Md.  499,  55  A.  614.  in  Blair  v.  Bartlett.  75  N.  Y.  150    31 

'« Pitts  V.  Oliver.   13  S.  D.  561,  83  Am.  Rep.  455. 
N.  W.  591.  79  Am.  St.  Rep.  907. 


Sec.  232.] 


Public  Documents. 


Yll 


the  fact  that  tlisse  payments  might  have  been  set  up  as  a  bar  to 
recovery. ^^  But  a  release  claimed  to  be  given  after  the  beginning 
of  an  action  but  three  years  before  judgment  was  rendered  therein 
which  was  never  put  forth  and  pleaded  in  that  action,  is  not  admis- 
sible as  a  defense  in  a  suit  on  a  bond  to  dissolve  an  attachment 
made  in  the  original  action,  as  on  the  question  of  the  release  the 
original  judgment  is  conclusive.^^  As  between  the  parties'  and 
privies  a  judgment  is  conclusive  as  to  every  question  upon  which 
the  right  of  the  plaintiff  to  recover,  or  the  validity  of  a  defense  in 
another  suit  is  found  to  depend,  and  upon  the  determination  of 
which  it  appears  from  the  record  or  is  shown  by  extrinsic  proof 
that  the  judgment  was  in  reality  founded.  If  a  defense  be  inter- 
posed and  prevail,  the  fact  or  facts  on  which  it  is  based  become 
res  adjudicata;  thus  a  defense  of  usury  established  renders  the 
usurious  security  void  for  any  future  use  or  purpose.^^ 
Sec.  232.  Effect  of  Foreign  Judgments. 


In  England,  the  rule  seems  to  be  that,  when  a  foreign  judg- 
ment is  made  the  foundation  of  an  action,  it  is  conclusive  as  to 


"  Maddux  v.  County  Bank,  129  Cal. 
665,  62  P.  264,  79  Am.  St.  Rep.  143. 

=0  Tucker  v.  Carr,  20  R.  I.  477,  40 
A.  1,  78  Am.  St.  Rep.  893. 

"Central    City   Bank   v.    Dana,    32 
Barb.   (N.  Y.)   296. 

Tlie  rule  as  to  the  conclusiveness  of 
judgments  has  found  its  way  into 
every  system  of  jurisprudence,  not 
only  from  its  obvious  fitness  and  pro- 
priety, but  because  without  it  an  end 
could  never  be  put  to  litigation.  It 
is,  therefore,  not  confined  in  Eng- 
land or  in  this  country  to  judgments 
in  the  same  courts,  or  to  decisions  of 
courts  of  concurrent  jurisdiction. 
Hopkins  V.  Lee,  6  Wheat.  (U.  S.)  109. 
114.  It  has  been  applied  to  decrees 
of  the  orphan's  court  of  Pennsylvania, 
President  of  the  Orphan's  Court  v. 
Goff,  14  S.  &  R.  (Penn.)  181; 
M'Pherson  v.  Cunliff,  11  id.  422,  to  a 
discharge  under  the  insolvent  laws ; 
M'Kinnev  v.  Crawford,  8  S.  &  R. 
(Penn.)  '351;  Sheets  v.  Hawk,  14  id. 
173;  to  a  decision  of  the  court  of  pro- 
bates, though  admitted  to  be  errone- 
ous; Brown  v.  Lanman,  1  Conn.  467; 
Jackson  v.  Robinson,  4  Wend.  (N. 
Y.)    436;   to  a   decree   of   the   county 


court  upon  a  complaint  pursuant  to 
the  statute  by  Avhich  decree  it  was 
found  the  duty  of  a  town  to  repair 
certain  bridges;  Canaan  v.  Green- 
woods T.  Co.,  1  Conn.  1 ;  to  a  decision 
of  a  court  of  common  pleas,  upon  a 
complaint  made  pursuant  to  the  stat- 
ute, for  overflowing  lands ;  Adams  v. 
Pearson,  7  Pick.  (Mass.)  341;  Gay  v. 
Welles,  id.  217;  to  a  decree  of  the 
county  court,  awarding  money  to  a 
claimant,  arising  from  the  sale  of 
lands  by  the  sheriff,  though  the  de- 
cree was  made  upon  a  mistaken  no- 
tion of  law,  and  though  the  case  ad- 
mitted of  no  remedy  by  writ  of  error; 
Gratz  V.  The  Lancaster  Bank,  17  S. 
&  R.  (Penn.)  278;  to  record  of  the 
forfeiture  of  a  recognizance,  where 
debt  was  brought  upon  such  recog- 
nizance; Shriver  v.  Commonwealth,  2 
Rawle  (Penn.),  206;  to  decrees  of  a 
court  of  equity ;  to  sentences  of  courts 
of  admiralty  and  of  ecclesiastical 
tribuanls,  and  in  short  to  every  court 
which  has  proper  cognizance  of  the 
subject-matter,  so  far  as  they  profejs 
to  decide  the  particular  matter  in  dis- 
pute. Hopkins  v.  Lee,  6  Wheat.  ( U. 
S.)   109. 


712 


Evidence. 


[Cliap.  20' 


the  merits/  but  when  it  comes  incidentally  in  question  that  it  is- 
only  prima  facie  evidence.^  But  in  our  courts  directly  the  reverse 
of  this  rule  generally  obtains,  and  a  foreign  judgment,  when  made 
the  foundation  of  an  action,  is  no  more  than  pi^ima  facial  evidence, 
and  it  may  be  impeached  by  showing  that  it  was  irregularly  ob- 
tained, or,  indeed,  upon  almost  any  ground  which  would  have  been 
a  defense  to  the  original  suit.^  In  some  cases  it  has  been  held  that 
if  the  defendant  produces  proof  which  is  sufficient  to  raise  a  pre- 
sumption that  the  plaintiff's  original  claim  was'  groundless,  the 
latter  will  be  put  to  prove  his  claim  de  novo  the  same  as  though 
no  judgment  had  been  rendered/  But  the  better  opinion  seems 
to  be,  that  if  the  foreign  court  had  jurisdiction  of  the  subject- 
matter  of  the  action  and  the  parties,  as  if  the  defendant  was  per- 
sonally served  with  notice  of  the  suit  in  a  legal  manner,  the  judg- 
ment will  be  conclusive,  and  especially  is  this  the  case  where  the 
defendant  appeared  and  answered  the  suit,^ 

And  all  the  American  cases  agree,  that  where  a  foreign  judg- 
ment comes  incidentally  in  question,  it  is  conclusive.®     As  where 


'  Gold  V.  Canham,  2  Swanst.  32o ; 
Tarleton  v.  Tarlton,  4  M.  &  S.  21 ; 
Phillips  V.  Hunter,  2  H.  Bl.  410;  Her- 
bert V.  Cook.  Wils.  36  n. 

='Houlditch  V.  Donegal,  2  CI.  &  F. 
478. 

'  Barney  v.  Patterson,  6  H.  &  J. 
(Md.)  182;  Hoxie  v.  Wright,  2  Vt. 
267;  Benton  v.  Burgot,  10  S.  &  K. 
(Penn.)  240;  Smith  v.  Lewis,  3 
Johns.  (N.  Y. )  157;  Robinson  v. 
Prescott,  4  N.  H.  450;  Hall  v.  Wil- 
liams, 6  Pick.  (Mass.)  232;  Gulick 
V.  Loders,  2  N.  J.  Eq.  68;  Winches- 
ter V.  Evans,  Cooke  (Tenn.),  420. 

♦King  V.  Gilder,  1  D.  Chip.  (Vt.) 
59. 

"Taylor  v.  Bryden,  8  Johns.  (N. 
Y.)  173;  Cincinnati,  &c.,  R.  R.  Co.  v. 
Wynne,  16  Ind.  385;  Sandford  v. 
Sandford,  28  Conn.  6. 

In  Ohio,  an  action  was  brought  on 
a  justice's  judgment  of  a  neighboring 
State,  and  Collet,  J.,  delivering  tiio 
opinion,  said:  "This  judgment,  al- 
though not  within  the  act  of  Congress, 
is  within  the  provision  of  the  consti- 
tution. It  is  a  judicial  proceeding,  \o 
which  full  faith  and  credit  is  to  oe 
given.  A  State  or  nation  is  bound, 
and  has  the  exclusive  right  to  admin- 


ister justice  within  its  territories  to 
parties  there  contending.  When  the 
parties  have  had  an  opportunity  of 
being  heard,  and  a  definite  decree  has 
been  pronounced,  a  regard  to  this 
right  and  duty  of  every  State  and  na- 
tion, and  to  justice,  requires  that  the 
justice  of  the  sentence  should  not  be 
re-examined  by  the  tribunals  of  an- 
other State  or  nation,  unless  it  is 
shown  that  the  sentence  was  obtained 
by  fraud.  Vat.  b.  2,  c.  7,  §  84.  Tho 
courts  in  England  had  not  uniformly 
regarded  this  principle  of  the  law  of 
nations,  therefore  it  was,  it  is  prob- 
able, that  this  was  introduced  into 
our  constitution."  Sih'er  Lake  Bank 
V.  Harding,  5  Hamm.  (Ohio)  545.  It 
is  further  said,  that  whether  the 
court  rendering  the  judgment  is  a 
court  of  record  or  not,  if  it  had  juris- 
diction, its  decision  is  conclusive, 
and,  until  it  is  reversed,  the  parties 
cannot  again  litigate  the  same  matter, 
unless  there  was  fraud  in  obtaining 
it.  See,  also,  Poorman  v.  Crane,  1 
Wright  (Ohio),  347;  Goodrich  v.  Jen- 
kins, id.  348;  Silver  Lake  Bank  v. 
Harding,  id.  430;  Kuhn  v.  Miller,  id. 
127. 
"  Barney    v.    Patterson's    Lessee,    6 


Si8c.  232.] 


Public  Documents.  *15 


it  is  used  as  the  foundation  of  a  title  derived  under  it;  or  to  show 
that  the  subject-matter  of  the  action  has  once  passed  in  remjudi- 
catemf  or  introduced  by  a  guarantor,  as  a  defense,  m  order  to 
show  that  his  principal  was  not  liable,^  or  is  relied  upon  by  the  gar- 
nishee in  a  foreign  attachment,  for  the  purpose  of  protecting  him- 
self against  the  claims  of  his  original  creditors  ;^'^  or  by  the  under- 
writer in  a  policy  of  insurance,  to  show  a  breach  of  warranty  on 
the  part  of  the  insured,  in  an  action  upon  the  policy;  or  by^a 
party  to  justify  himself  for  acts  done  in  virtue  of  it;  but  ail  the 
cases  agree  that  a  judgment  rendered  without  jurisdiction  is  void, 
and  to  be  treated  as  a  nullity,  whether  it  comes  in  question  directly 

or  collaterally.^^  .       .  ^     ir  +i,^ 

A  judgment  of  the  supreme  court  or   a  circuit  court  ol  the 

United  States,  when  offered  in  evidence  in  a  State  court    is  not 

to  be  treated  in  regard  to  its  effect  as  a  foreign,  but  as  a  domestic 

■'''iTthe  constitution  of  the  United  States,  it  is  declared  that 
"full  faith  and  credit  shall  be  given  in  each  State  to  the  ^public 
acts,  records,  and  judicial  proceedings  of  every  other  State.  And 
congress  is  authorized  by  general  laws  to  prescribe  the  manner  in 
which  such  acts,  records  and  proceedings  shall  be  proved,  and  the 
effect  thereof.  In  pursuance  of  this  authority,  congress,  alter 
providing  for  the  mode  of  proof,  has  declared  that  "  the  said  rec- 
ords and  judicial  proceedings,  authenticated  as  aforesaid,  shall 
have  such  faith  and  credit  given  to  them  in  every  court  withm 

H    &  J.    (Md.)    182,202,203;   Smith      Moore    vSpackman,     12    S.     &    K. 

i-:r^liSTiSTi4Slf ;    Hf5^'  -  ^-^^' ' '-'' 

Andrews  v.  Herriot,  4  Cow.    (N.  YA        (U-  S.),^434^     ^^.^^^^^    ^   ^^^^^     ^^^  ^ 

■^Barney  v.  Patterson's  Lessee.  6  H.  Rapelje    y.    Emery     2    Ball      (Penn.) 

&   1    ml)    182,  202,  203:  Thompson  231:   Hoxie  v.  Wright    2  Vt   269 

'n^  V    •      o  ^^i     ni    ^\    ^'^^  ^»  Elliot  v.  PiersoU,  1  Pet.    (U.   b.) 

-s-S'^  Sis!^-^inJ^k  Y.)  |.S:   --r^.  HarMen^  l^Pa^ne^  (.. 

(Md  riS :   s-ee,  also^  Holmes  v.  Rem-       2   East,  261 ;   Thompson  v.  Tolm.e,  ^ 

Th  "'    '4"^-  Bis;en'';     bJ^,  1  '^s/e-  Barney  v.  Patterson.  6  H.  & 

^?         .4     llmver  V   Pa^kefs^Mass.  J.    (Md.)     182,    203;       St.    Albans_  v. 

aT'sf  24?     Perkins   V     Parker     1  Bush,   4  Vt.   58;    Pepoon  v.   Jenkins, 

iS'ss.'- m':   note'^to'lnd;e.vs  v.   Her-  2  Johns.  Cas.    (N    Y.)    119;   Reed  v. 

riot    4  Cow.    (N.  Y.)    521;      Scott  v.  Ross,  1  Baldw.   (U.  S.  C.  C.)    36. 
Coleman,    5    Litt.     (Ky.)     349,    3o0; 


Y14:  Evidence.  [Chap.  20 

tb3  United  States  a^  they  have  by  law  or  usage  in  the  court  of  the 
State  from  whence  the  said  records  are  or  shall  be  taken."  By  a 
supplementary  statute,  the  provisions  of  the  original  act  are  ex- 
tended to  the  records  and  judicial  proceedings  of  the  respective 
territories  of  the  United  States,  and  the  countries  subject  to  the 
juris'cUction  of  the  United  States. 

There  has  been  some  diversity  of  opinion  with  respect  to  the 
interpretation  of  this  clause  of  the  constitution,  particularly  as  to 
the  words  in  the  latter  branch  of  the  section,  "  and  the  effect 
thereof."  Some  judges  have  thought  that  the  word  "  thereof  " 
has  reference  to  the  proof  or  authentication,  so  as  to  read  "  and  to 
jirescribe  the  effect  of  s'uch  proof  or  authentication."  Others  have 
thought  that  it  referred  to  the  antecedent  words,  "  acts,  records 
and  proceedings,"  so  as  to  read  "  and  to  prescribe  the  effect  of  such 
acts,  records  and  proceedings. "^°  Those  who  were  of  opinion  that 
the  preceding  section  of  the  clause  made  judgment's  in  one  State 
conclusive  in  all  others,  naturally  adopted  the  former  opinion ;  for 
otherwise,  the  power  to  declare  the  effect  would  be  either  wholly 
senseless  or  congress  would  possess  the  power  to  repeal  or  vary 
the  full  faith  and  credit  given  by  that  s'ection.  Those  who  were  of 
opinion  that  such  judgments  were  not  conclusive,  but  only  prima 
facie  evidence,  as  naturally  embraced  the  other  opinion,  and  sup- 
posed that  until  congress  should  by  law  declare  what  the  effect  of 
such  judgment  should  be,  they  remained  only  prima  facie  evi- 
dence. ^^ 

The  former  seems  the  interpretation  generally  adopted;  but  it 
is  not  practically  of  much  importance  which  construction  prevails, 
since  each  admits  of  the  competency  of  congress  to  declare  the 
effect  of  judgments  when  duly  authenticated,  which  has  been  done. 
It  may  be  stated,  as  a  principle  now  uniformly  received  and  sanc- 
tioned throughout  the  United  States,  that  the  judgment  of  one  of 
the  State  courts  is  of  the  same  dignity  in  every  other  State  as  in 
the  one  Avhere  it  was  pronounced ;  and  hence,  if  in  the  courts  of  the 
State  where  the  judgment  was  pronounced,  it  is  conclusive  in  its 
operation  as  evidence,  or  otherwise,  it  must  be  equally  so  and  to  the 
same  extent  in  all  the  courts  throughout  the  Union." 

.J-I^^'^^TT-?    ''■    ^'■'«?^'    ^    ^^^^^-    462.  V.  Gibbs.  id.  155;      Commonwealth  v. 

467;       AA'inchestpr    %\    Evans,    Cooke  Green.   17  Mass.  515 

(Tenn.),    420;   Hitchcock    v.    Aieken,  '"  3  Story's  Const    181. 

1  Cai.    (N.  y.)    460;   Green  v.  Sarmi-  '■  trills    v.    Duryee,    7    Cranch    (U. 

ento,   1   Pet.    (U.  S.  C.  C.)    74;  Field  S.),  481;    Clark   v.    Carnngton,  7  id. 


Sec.  232.] 


Public  Documents. 


715 


All  the  cases  above  cited  will  be  found  to  agree  that  the  judg- 
ment of  a  neighboring  State  may  be  wholly  impeached  by  show- 
ing that  the  court  rendering  it  had  not  jurisdiction ;  and  it  makes 
no  difference  whether  the  judgment  comes  in  question  directly  or 
incidentally.^^  And  if  the  judgment  is  inconclusive  in  the  State 
where  it  was  rendered,  or  if  it  is  inquirable  into  there  during  a 
particular  period  and  on  certain  conditions,  it  will  be  open  to 
investigation  to  the  same  extent  everywhere  else.  This  is  an 
obvious  deduction  from  the  foregoing  position  with  regard  to  the 
effect  of  such  judgments  generally.  It  is,  moreover,  directly  sanc- 
tioned by  several  well-considered  cases.^® 

Some  of  the  authorities  have  a  vagus  way  of  impeaching  such 
judgments  by  showing  that  they  were  fraudulently  obtained.^" 
Possibly  this  may  mean  fraud  in  acquiring  jurisdiction ;  as  where 
jurisdiction  has.  professedly  been  obtained  against  a  non-rssident 
by  attaching  his  property,  and  the  property  attached  was  merely 
nominal,  as  a  chip  or  the  like,  or  did  not  belong  to  the  defendant. 


308;       Hampton      v.      M'Connell,      3 
Wheat.      (U.    S.)     234;     Mayhew     v. 
Thatclier,  6  id.  129 ;  Hoxie  v.  Wright, 
2    Vt.    263;      Buford    v.    Buford,    4 
Munf.    (Va.)    241;     Borden  v.   Fitch. 
15   Johns.    (N.   Y.)    121;   Andrews  v. 
Montgomery,    19    id.    162;      Field    v. 
Gibbs,  1  Pet.   (U.  S.  C.  C.)    155;  Com- 
monwealth  V.    Green,   14   Mass.   515; 
Gibbons  v.  Livingston.  6  N.  J.  L.  236; 
Newell   V.  Newton,   10  Pick.    (Mass.) 
470;   Hall    v.    Williams,    6    id.    232; 
Spencer  V.  Brockway,  1  Ham.   (Ohio'-, 
259;   Benton    v.    Burgot.    10    S.    &    R. 
(Penn.)    240;    Mitchell   v.   Osgood,   4 
Me.  124;  Wheeler  v.  Raymond,  8  Cow. 
(N.  Y.)   311;   Shunway  V.  Stilwell,  6 
Wend.     (N.    Y.)     447;       Starbuck    v. 
Murray,  5  id.  148;  Holbrook  v.  Mur- 
ray,  5   id.   161;      Rogers  v.   Coleman, 
Hard.    (Ky.)    413;   Scott  v.   Coleman, 
5  Litt.    (Ky.)    349;   Evans  v.  Tatem, 
9  S.  &  R.    (Penn.)   259,  260;  Kean  v. 
Rice,  12  id.  203;  Gilman  v.  Houseley, 
5     Martin's    La.    Rep.,    N.     S.    661; 
Mackee  v.   Cairnes,  2   id.   599 ;   Clark 
V.  Day,  2  Leigh   (Va.).  172;  Hayman 
V.  Miher,  1  Bailey  (S.  C),  242; 'Holt 
v.    Alloway,    2    Blackf.     (Ind.)     108; 
Gulick  v.  Loder,  1  Green.  68;   Earth- 
man  V.  Jones,  2   Yerg.    (Tenn.)    484. 
See,   also,   Jacobs   v.   Hull,    12    Mass. 
25 ;      Wade  v.   Wade,   Cam.  &   Norw. 


486;  Betts  v.  Death.  Addis.  (Penn.) 
265;  Curtis  v.  Gibbs,  1  Penn.  399; 
Smith  V.  Rhoades,  1  Day  (Conn.). 
168;  Wernwag  v.  Pawling,  5  G.  &  J. 
(Md.)  500:  Bradshaw  v.  Heath,  13 
Wend.  (N.  Y.)  407;  McRae  v.  Mat- 
toon,  13  Pick.  (Mass.)  53;  Tipton  v. 
Maryfield,  10  La.  189;  Hinton  v. 
Townes,  1  Hill  (N.  Y.),  439;  Adams 
V.  Rowe,  14  Me.  80;  Goodrich  v.  Jen- 
kins, 1  Wright  (Ohio),  348;  Hunt  v. 
Lyle,  8  Yerg.   (Tenn.)   142,  6  id.  412. 

^«See  Elliot  v.  Piersol,  1  Pet.  (U. 
S.)  328,  340;  Thompson  v.  Tolmie. 
2  id.  157;  Holmes  v.  Boughton,  10 
Wend.  (N.  Y.)  75;  Bradshaw  v. 
Heath,  13  id.  407;  Walker  v.  Max- 
well, 1  Mass.  103;  Fisher  v.  Harn- 
den,  1  Paine   (U.  S.C.  C),  55. 

"Green  v.  Sarmiento,  1  Pet.  (U. 
S.  C.  C.)  74;  Baugh  v.  Baugh,  4 
Bibb  (Ky.),  556;  Curtis  v.  Gibbs,  N. 
J.  Eq.  399;  Rogers  v.  Coleman,  1 
Hardin  (Ky. ),  420;  Armstrong  v. 
Carson,  2  Dall.  (Penn.1  302;  1  Story's 
Com.  on  the  Const.  183;  Wernwag  v. 
Pawling,  5  H.  &  J.    (Md.)    500. 

^"  See  Andrews  v.  Montgomery.  19 
Johns.  (N.  Y.)  162;  Borden  v.  Fitch, 
15  id.  121;  Holt  V.  Alloway,  2 
Blackf.  (Ind.)  108;  Silver  Lake  Bank 
V.  Harding,  5  Ham.    (Ohio)   545. 


716  Evidence.  [Cihap.  20 

In  such  case  the  judgment  might  be  void,  even  by  the  local  law;^ 
or  it  may  relate  to  instances  where  jurisdiction  has  been  exercised 
in  fraud  of  the  sovereignty  which  had  the  rightful  and  exclusive 
jurisdiction.^^  It  is  clear  that  wherever  the  point  has  been  started, 
courts,  in  examining  these  judgments,  have  generally  felt  them- 
selves restricted  to  inquiries  respecting  the  effect  to  which  they 
would  be  entitled  in  a  collateral  suit  in  the  State  where  they  wers 
pronounced.^^  In  Massachusetts,  it  has  been  directly  determined 
that  in  an  action  on  the  judgment  upon  another  estate,  the  defend- 
ant cannot  be  allow^ed  to  show  that  it  was  obtained  by  fraud  and 
misrepresentation.^^  Upon  foreign  judgments  the  merits  as  w^ell 
as  the  jurisdiction  of  the  courts  which  rendered  them  may  be  in- 
quired into,  so  where  a  foreign  judgment  appears  from  the  plead- 
ings to  be  founded  on  a  certain  assignment  which  has  been  de- 
clared invalid  by  the  court  of  the  forum  the  judg-ment  itself  Avill  be 
held  invalid  in  that  court.^''  Where  it  appears  on  inspection  of  the 
papers  that  the  court  did  not  acquire  jurisdiction,  as  on  account  of 
insufficient  service,  the  judgment  is  void  beyond  the  jurisdiction  in 
which  it  was  pronoimced,^^  and  w^here  a  default  is  obtained  against 
a  party  in  a  suit  in  a  foreign  court  by  collusion  with  the  plaintiff 
in  that  suit  to  defeat  the  title  of  a  third  party  the  latter  may  plead 
the  collusion  in  avoidance  of  the  judgment.^^  ^Vhers  a  judgment 
of  a  court  of  another  State  is  set  up  as  a  bar  to  an  action  it  is  open 
to  the  plaintiff  to  show  that  the  foreign  judgment  was  obtained 
through  fraud  in  procuring  certain  attorneys  to  appear  in  the 
action.^^  The  judgment  of  another  State  rendered  by  the  entry  of 
a  prothonotary  under  a  peculiar  practice  in  that  State  will  be 

"Beech     v.     Abbott,     6     Vt.     592;  from   necessity,    to    all   courts   whicn 

Rogers    v.    Coleman,    Hardin     (Ky.),  are    called   on    to    enforce    and    carry 

418.  into  effect  the  judgment  of  some  other 

"^Borden   v.    Fitch,    15   Johns.    (X.  court.     That  limit  is  an  inquiry  into 

Y. )    121;     Jackson  v.  Jackson,   1    id.  the  jurisdiction  of  the  court  render- 

424 ;   Harding  v.  Alden,  9  Me.   140.  ing  the  judgment." 

"In   Moren   v.    Killibrew,    2    Yerg.  =^  McRea     v.     Mattoon,      13     Pick. 

(Tenn. )    379,    Wiiyte,   J.,   delivering  (Mass.)     53;      Smith     v.     Lewis,     3 

the  opinion  in  a  case  which  involved  Johns.   (X.  Y. )  517. 

the    extent    to    which    such    inquiry  =°  Tremblay  v.  Aetna  Life  Insurance 

might  go,  said:  "I  disclaim  all  power  Co.,   97   Maine,   547,   55   Atl.   509,   94 

over    that    court   or    its    proceedings,  Am.  St.  Rep.  521,  and  note,  page  532. 

whether   it   hath   rendered   a   correct,  ^  Id. 

a  regular   or   an  erroneous  judgment  "  Id. 

upon     the     subject-matter     before   it.  =' Grav    v.    Richmond    Bicycle    Co., 

This  court  confines  itself  within  that  167  N.  Y.  348,  60  N.  E.  663,  82  Am. 

narrotv   limit   of   inquiry,    incidental,  St.  Rep.  720. 


Sec.  232.] 


Public  Documents. 


717 


recognized  in  other  States  if  valid  where  made,  although  it  would 
not  have  been  valid  if  so  rendered  in  ths  State  of  the  forum.^^  A 
foreign  judgment  against  the  defendant  entered  without  service  on 
or  appearance  of  the  defendant,  is  valid  if  taken  in  accordance  with 
an  agreement  to  confess  judgment  previously  signed  by  him.^" 
Some  discussion  has  arisen  as  to  what  kind  of  judgments  were 
included  within  tliB  constitution  and  the  law  of  congress.^^ 


=*Fre(i  Miller  Brewing  Co.  v.  Cap- 
ital Insurance  Co.,  Ill  Iowa,  590,  82 
N.  W.  1023,  82  Am.  St.  Rep.  529. 

'» Crim  V.  Crim,  162  Mo.  544,  63  S. 
W.  482,  85  Am.  St.  Rep.  521. 

'^  In  Massachusetts,  it  had  been 
settled  that  they  embraced  only  civil 
judgments,  and  did  not  extend  to 
judgments  in  criminal  proceedings. 
Hence,  a  conviction  of  an  individual 
in  New  York  of  an  infamous  offense 
was  held,  in  the  former  State,  not  to 
disqualify  him  from  being  a  witness ; 
Commonwealth  v.  Green,  17  Mass. 
515;  but  in  North  Carolina  a  differ- 
ent doctrine  is  maintained.  There  it 
has  been  held  that  a  judgment  of  con- 
viction in  a  neighboring  State  of  an 
infamous  crime  is  within  the  consti- 
tution and  act  of  Congress,  and  ren- 
ders the  person  convicted  incompe- 
tent. State  V.  Candler,  3  Hawks  (N. 
C),  393. 

In  New  Hampshire,  it  is  held  that 
a  judgment  of  a  justice  of  the  peaci* 
of  another  State  cannot  be  authenti- 
cated according  to  the  law  of  Con- 
gress; and  it  is,  therefore,  regarded 
as  standing  upon  the  same  footing 
with  a  foreign  judgment,  leaving  the 
whole  merits  open  for  reinvestigation. 
Robinson  v.  Prescott,  4  N.  H.  450 ; 
Mahurin  v.  Bi(;kford,  6  id.  567. 

In  Massacluisetts,  the  courts  are 
not  disposed  to  extend  the  constitu- 
tion and  law  of  Congress  any  further 
than  the  decisions  of  the  Federal 
court  necessarily  require,  and  have  ac- 
cordingly held  with  New  Hampshire 
in  respect  to  the  judgments  of  jus- 
tices of  the  peace.  Their  language 
on  this  svib ject  is  as  follows :  "  Cer- 
tainly we  think  the  judicial  proceed- 
ings referred  to  in  the  constitution 
were  supposed,  by  the  Congress- whicli 
passed  the  act  providing  the  manner 
of  authenticating  records,  to  have  re- 
lated to  proceedings  of  courts  of  gen- 


eral jurisdiction,  and  not  those  which 
are  merely  of  municipal  authority; 
for  it  is  required  that  the  copy  of  the 
record  shall  be  certified  by  the  cleric 
of  the  court,  and  that  there  shall  be 
also  the  certificate  of  the  judge,  chief 
justice  or  the  presiding  magistrate, 
that  the  attestation  is  in  due  form. 
This  is  founded  upon  the  supposition 
that  the  court,  whose  proceedings  are 
to  be  thus  authenticated,  is  so  con- 
stituted as  to  admit  of  such  officers, 
and  the  act  has  wisely  left  the  records 
of  magistrates  who  may  be  vested 
with  limited  judicial  authority,  vary- 
ing in  its  objects  and  extent  in  every 
State,  to  be  governed  by  the  laws  of 
the  State  into  which  they  may  be  in- 
troduced for  the  purpose  of  being  car- 
ried into  effect.  Being  left  impro- 
vided  for  by  the  constitution  or  laws 
of  the  United  States,  they  stand  upon 
no  better  footing  than  foreign  judg- 
ments, being  not  more  than  prima 
facie  evidence  of  debt,  and  liable  to 
be  defeated  in  their  operation,  under 
the  plea  of  nil  debet,  as  other  foreign 
judgments  are."  Warren  v.  Flagg,  2 
Pick.  (Mass.)  449.  Whether  this  is  the 
law  in  Indiana,  quere.  See  Cone  v. 
Cotton,  2  Blackf.  (Ind.)  82.  In  Con- 
necticut, a  justice's  judgment  ren- 
dered in  "  those  States  where  justices 
of  tlie  peace  hold  courts  of  record." 
has  been  held  within  the  act  of  Con- 
gress, and  not  re-examinable  when 
properly  authenticated.  Bissell  v. 
Edwards,  5  Day  (Conn.),  363.  In 
Yermont  the  same  doctrine  prevailed 
formerly  as  in  New  Hampshire  and 
Massachusetts,  viz.,  that  the  justices' 
judgments  of  neighboring  States  gen- 
erally, were  not  contemplated  by  the 
act  of  Congress  and  the  constitution, 
and  consequently  were  re-examinable 
upon  the  merits  when  sued  upon  like 
foreign  judgments.  King  v.  Van  Gil- 
der, 1  D.  Chip.    (Vt.)    59.     But  more 


'18 


EviDE]S^CE. 


[Chap.  20 


Sec.  233.  Attack  on  Foreign  Judgments. 

A  foreign  judgment  may  always  be  avoided  upon  any  ground 
upon  which  a  domestic  judgment  could  be  avoided,  and  where 
upon  its  face  it  does  not  appear  to  be  final  and  conclusive  as  an 
estoppel  in  the  country  in  which  it  was  rendered  it  will  not  be  an 
estoppel  in  a  foreign  jurisdiction.^  So  a  foreign  judgment  may 
be  impeached  upon  an  error  of  law  apparent  upon  its  face,  whether 
it  was  set  up  as  a  ground  of  action,  or  in  defense  thereto.^  But 
the  error  of  the  law  must  be  verj'  clear.^  So,  too,  they  may  be 
avoided  if  founded  upon  fraud,  or  rendered  by  a  court  which  did 
not  have  jurisdiction,*  or  if  the  defendant  was'  not  served  with 
process  in  the  original  action.^  The  proposition  that  a  judgment 
pronounced  without  jurisdiction  is  void,  and  can  be  no  evidence 


recently  it  has  been  held  otherwise  in 
regard  to  the  judgment  of  a  justice, 
"  where  the  law  requires  him  to  keep 
records."  Starkweather  v.  Loomis,  2 
Vt.  573;  Blodget  v.  Jordan,  6  id.  580. 
In  Kentucky,  it  seems  that  a  judg- 
ment of  an  Indiana  justice  of  the  peace 
is  within  the  constitution  and  the  act 
of  Congress.  Scott  v.  Cleveland,  3 
Mon.   (Ky.)  87. 

In  Ohio,  the  doctrine  i.s,  that  the 
mode  of  certifying  the  judgments  uf 
justices  of  the  peace  has  not  been  pro- 
vided for  by  the  act  of  Congress;  bu' 
when  duly  proved  in  the  common-law 
mode  they  are  within  the  provisions 
of  the  constitution,  entitled  to  "  full 
faith  and  credit,"  and  not  subject  to 
re-examination.  Silver  Lake  Bank  v. 
Harding,  5  Ham.  (Ohio),  54.3;  Kuhn 
V.  sillier,  id.  127.  So  also,  it  seems, 
in  New  York.  Thomas  v.  Robinson, 
3  Wend.  (N.  Y.)  263:  Sheldon  v. 
Hopkins,  7  id.  435;  Stockwel]  v.  Cole- 
man, 10  Ohio  St.  33.  A  decree  of  the 
court  of  chancery  has  been  held 
within  the  constitution  and  act  of 
Congress.  Barbour  v.  Watts,  1  Marsh. 

(Ky.)  292,  293:  Tarlton  v.  Briscoe, 
1  id.  67.  So  also,  in  Louisiana,  Scott 
V.  Blanchard,  8  Mart  (La.)  303.  In 
Tennessee,    Hunt    v.    Lvle,    8    Yer^. 

(Tenn.)  142,  G  id.  412.  In  South 
Carolina,   Miller  v.   Miller,    1    Bailev 

(S.  C),  242.  In  NeAv  York,  a  reg- 
ular decree  of  divorce,  by  the  Supe- 
rior Court  of  Connecticut,  has  been 
viewed    as    standing    upon    the    sam.e 


footing,  Bradshaw  v.  Heath,  13 
Wend,  (N.  Y.)  407.  In  Maine,  Hard- 
ing V.  Alden,  9  Me.  149. 

^  Plummer  v.  Woodburne,  4  B.  & 
C.  636;  Smith  v.  Nicholls.  5  New 
Cases,  222;  Obiohui  v.  Bligh,  S 
Bing.  351. 

^  Mouelli  V,  Rossi,  2  B.  &  Ad.  757 ; 
Buchanan  v.  Rucker,  1  Camp.  67. 

^Alivan  v.  Furnival,  1  C.  M.  &  R. 
293;    Arnot   v.   Redfern,     2     C.   &   P. 
88;   Becquet  v.  McCarthy,  2  B.  &  Ad 
957. 

*  Price  V.  Deerhurst,  8  Sim.  279. 

■*  Buchanan  v.  Rucker,  1  Camp.  67; 
Mees  V.  Thulluson,  20  Eng.  L.  &  Eq. 
465;  Frankland  v,  MacGusty,  1 
Knapp,  274;  Ferguson  v.  Mahon,  11 
Ad.  &  El.  179;  Houlditch  v.  Donegal, 
8  Bligh,  338;  and  the  defendant  may 
show  that  he  was  not  served,  Redus 
V.  Burnett,  59  Tex.  376;  Lampton's 
Succession,  35  La.  An.  418;  Mitchell 
V.   Ferriss,  5  Del.   34. 

Thus,  where  the  summons  in  the 
case  was  served  by  nailing  it  up  on 
the  door  of  the  courthouse,  it  was 
held  that  although  this  might  have 
been  a  legal  service  in  the  jurisdic- 
tion in  which  the  judgment  was  ren- 
dered, it  was  not  sufficient  to  give 
validity  to  the  judgment  outside  that 
jurisdiction.  A  contrary  doctrine 
Avould  not  only  be  inconsistent  with 
every  principle  of  justice,  but  would 
be  exceedingly  dangerous.  In  a  case 
before  cited,  Buchanan  v,  Ruckei-, 
ante,    it  was   attempted   to   maintain 


Sec.  232.]  Public  Documejstts.  719 

whatever,  is  universally  acknowledged,  not  only  in  respect  to  for- 
eign judgments,  but  to  judgments  as  among  the  neighboring 
States,  as  well  as  to  domestic  judgments.  And  it  makes  no  differ- 
ence whether  the  judgment  is  sought  to  be  enforced  directly  by 
action,  or  whether  it  comes  incidentally  in  question.  The  applica- 
tion of  this  doctrine  to  foreign  judgments,  and  to  judgments  in 
the  several  States  will  be  found  recognized  in  nearly  all  the  cases. 
So  far  as  the  general  principle  is'  concerned,  there  is  no  difficulty ; 
but  the  point  of  embarrassment  usually  lies  in  determining 
whether  the  court  had  jurisdiction  in  fact,  and  in  ascertaining  how 
far  that  jurisdiction  extended  in  the  particular  instance.  This 
will  lead  to  the  inquiry,  among  others,  was  the  court  properly  conr 
stituted?  Such  inquiry  is  always  allowable  when  a  foreign  judg- 
ment, or  the  judgment  of  a  neighboring  State  comes  in  quss'tion;® 
but  to  what  length  is  not  very  clearly  defined.  In  a  Pennsyl- 
vania case^  an  objection  was  raised  as  to  the  jurisdiction  of  a  court, 
acting  at  St.  Domingo,  which  was  said  not  to  have  been  derived 
from  the  proper  authority;  and  it  was  held  sufficient  that  the 
court  was  one  de  facto,  deriving  its  authority  from  those  in  whom 
the  power  of  the  country  was  for  the  time  being  vested;  and, 
therefore,  it  was  held  to  have  the  jurisdiction  of  a  legitimate  court.^ 
If  the  origin  of  the  foreign  court  does  not  appear,  it  seems  that 
it  will  be  presumed  legitimate ;  but  where  the  source  of  its  author- 
ity is  stated,  the  tribunal  before  which  its'  judgment  is  produced 
will  examine  it;  and  if  it  be  contrary  to  the  usual  mode  of  con- 
stituting courts,  it  s'hifts  the  onus  p'obandi  upon  the  party  who 
would  sustain  the  judgment,  and  it  will  then  be  for  him  to  estab- 
lish that  the  foreign  court  was  properly  organized.'    Another  im- 

the  judgment  by  the  local  law  of  the  is   no   foundation   for   raising   an   as- 

island  of   Tobago,  where  it  was   ren-  sumpsit    upon    the    judgment    so    ob- 

dered,    which,    in    terms,    authorized  tained." 

proceedings      of     a      similar     nature  "  Rose  v.  Himely,  4  Cranch   (U.  S.j, 

against     persons     absent     from     the  241;     Cherriot    v.    Foussat,    3    Binn. 

island.     Lord  Ellenboroitgh,  who  de-  (Penn.)    220;   Moren   v.   Killibrew,   2 

livered  the  opinion,  9  East,  192,  said:  Yerg.     (Tcnn.)    376,    379.    380:      The 

"  Absent    from    the    island    must    be  Nueva    Anna    and    Liebre,    6    Wheat. 

taken  only  to  apply  to   persons  who  (U.  S. )    193. 

had  been  present  there,  and  were  sub-  ^  Bank    of    North    America    v.    Me- 

ject  to   the  jurisdiction   of  the  court  Cal,  4 '  Binn.    (Penn.)    371. 

out  of  which  the  process  issued;   and  "Ingram  v.  Cocke,  1  Overt.   (Tenn.) 

as  nothing  of  that  sort  was  in  proof  22.     See  per  Best,  C.  J.,  Yrisarri  v. 

here  to  show  that  the  defendant  was  Clement,  2  C.  &  P.  223. 

^subject    to    the    jurisdiction     at    the  » Snell  v.  Faussatt,  1  Wash.    (U.S. 

time   of   commencing   the   suit,    there  C.  C. )   271. 


720  Evidence.  [Chap.  20 

porfant  inquiry  is,  has  the  foreign  court,  or  the  court  of  the  neigh- 
boring State,  as  the  case  may  he,  complied  with  the  local  law,  so 
as  to  have  enabled  it  to  acquire  jurisdiction  over  what  it  has  as- 
sumed to  decide?  That  this  inquiry  is  admissible,  results  neces- 
sarily from  the  legal  truism,  that  a  judgment  void  where  it  is 
rendered  is  void  everywhere.  It  has  indeed  been  said^  in  a  gen- 
eral way,  in  reference  to  admiralty  proceedings,  that  a  foreign 
court,  so  far  as  its  jurisdiction  depends  upon  municipal  rules, 
must  judge  whether  it  has  jurisdiction  or  not,  and  that  such  de- 
cision must  be  respected/*'  But  if,  by  our  obligation  to  respect 
decisions  of  this  character,  it  is  intended  to  affirm  that  we  are  to 
regard  them  as  conclusive,  the  doctrine  carried  out  and  applied  to 
foreign  courts  deriving  their  jurisdiction  under  local  regulations, 
■would  obviously  lead  to  an  absurdity  not  to  be  countenanced ;  for 
-every  court  either  expressly  or  by  implication  passes  upon  the 
question  of  its  own  jurisdiction  whenever  it  renders  judgment; 
and  to  say  that  because  it  has  so  passed  upon  it,  there  shall  be  no 
further  examination  into  the  point,  would  be  paying  to  foreign 
judgments  a  more  deferential  regard  than  is  allowed  even  to  do- 
mestic judgments.^^  The  court  held  a  Missouri  judgment,  ren- 
dered upon  attachment,  void,  because,  among  other  things,  the 
return  of  the  officer  to  the  attachment  did  not  comply  with  the  local 
statute.^^  A  foreign  judgment  is  conclusive,  so  far  as  to  preclude 
a  retrial  upon  the  merits.^^  But  the  defendant  may  show  that  the- 
foreign  court  had  not  jurisdiction  of  the  subject-matter  of  the  suit, 
or  that  the  defendant  was  not  starved  with  process,  or  that  the  judg- 
ment was  fraudulently  obtained.^*  It  may  also  be  showTi  that  the 
judgment  was  afterward  reversed  or  vacated  by  the  court  render- 
ing it,  even  where  that  was  done  after  issue  joined  upon  it  in  this 
State.^^     A  question  not  unfrequently  arises  under  this  branch  of 

"Rose  V.  Himely,  4  Cranch   (U.  S.)  157;   Fisher  v.  Harnden,  1  Paine   ( U. 

276;        Cherriot  v.   Foussat,  3   Bimi.  S.),  155. 

(Penn.)    255.  »  Lozier  v.  Westcott.  26  N.  Y.  146. 

"  Eaithman     v.     Jones,     4     Yerg.  ^*  Henderson  v.  Henderson.  6  C.  B. 

(Tenii.)    484.  288;   Ferguson    v.    Mahen.    11    Ad.    & 

"  Karthnian     v.     Jones,     4     Yerg.  El.  179. 

(Tenn.)   484.     See,  also.  Cone  v.  Cot-  ''Kinsev  v.  Ford,  38  Barb.   (N.  Y.) 

ton,  2  Blackf.  (Ind.)  82;   Buchanan  v.  195.     In   Jarvis   v.    Sewell,   40   Barh. 

Rucker,  9  East,  192:     IVIoren  v.  Killi-  (X.  Y.)    449,  the  mode  of   proving  a, 

brew.   2    Yerg.    (Tenn.)    376;      Elliot.  judgment  or  decree  of  the  privy  coun- 

V.   Piersol,   1   Pet.    (U.   S.)    340,  341;  "cil  in  England,  which  is  not  a  court 

Tlionipson  v.  Tolmie,  2  Pet.    (U.  S.)  of  record,  and  has  neither  clerk  nor 


Sec.  232.] 


Public  Documents. 


721 


the  inquiry:  Wliat  is  the  presumption  where  a  foreign  judgment, 
or  the  judgment  of  a  neighboring  State,  is  introduced,  respecting 
its  jurisdiction,  as  depending  upon  its  compliance  or  non-compli- 
ance with  the  local  law  ?'^*  A  distinction  is  taken  between  judg- 
ments of  courts  of  limited  and  special  jurisdiction,  and  those  of 


seal,  is  considered  and  passed  upon, 
in  an  action  upon  a  bond  for  costs 
given  on  appeal  from  a  Canada  judg- 
ment. 

"a  In  an  English  case,  Umoragio  v. 
Bligh,  8  Bing.  335,  a  suit  was  insti- 
tuted in  England  to  recover  damages 
avparded  by  the  vice-admiralty  of  the 
island  of  Malta ;  and  it  was  held  that 
the  decree,  in  order  to  be  evidence  of 
indebtedness,  must  show  expressly, 
and  not  by  mere  inference,  that  the 
defendant  was  brought  within  the  ju- 
risdiction of  the  vice-admiralty  court, 
and  that  the  court  where  the  suit  was 
pending  would  not  presume  it.  So 
also,  in  a  New  Hampshire  case,  Thur- 
ber  V.  Blackburn,  1  N.  H.  242,  where 
debt  was  brought,  in  New  Hampshire, 
upon  a  judgment  of  the  common  pleas 
of  Rhode  Island,  it  was  held,  that  in- 
asmuch as  it  did  not  appear  by  the 
record  that  the  defendant  had  per- 
sonal notice  of  the  suit,  'or  appeared 
to  the  action  in  the  court  where  the 
judgment  was  pronounced,  the  judg- 
ment must  be  regarded  as  obtained 
without  jurisdiction;  for  these  facts 
would  not  be  presumed.  In  a  New 
York  case,  Bradshaw  v.  Heath,  13 
Wend.  (N.  Y.)  407,  the  plaintiff, 
Mary  Bradshaw,  brought  ejectment, 
in  New  York,  for  dower,  and  in  ans- 
wer to  proof  on  the  part  of  the  de- 
fendant, that  the  plaintiff  previous  to 
the  marriage  in  virtue  of  which  she 
claimed  dower,  was  a  married  woman ; 
and  that  her  first  husband  was  still 
alive — the  plaintiff  produced  a  record 
of  the  Superior  Court  of  Connecticut, 
containing  a  sentence  of  divorce,  on 
her  petition,  from  her  first  husband. 
The  petition,  as  stated  in  the  record, 
alleged  that  the  first  husband  had  de- 
serted the  petitioner,  and  had  ever 
since  been  to  parts  unknown.  No 
appearance  on  the  part  of  the  hus- 
band was  shown  by  the  record,  no. 
did  it  state  that  he  was  served  with 

46 


process,  or  had  notice  of  the  proceed- 
ing; but,  on  the  contrary,  the  adju- 
dication was  alleged-  to  have  been 
made  on  hearing  "  the  plea  and  evi- 
dence produced  by  the  plaintiff."  The 
defendant  proved  that  the  first  hus- 
band, at  the  time  of  the  presentation 
of  the  petition,  and  of  the  granting  of 
the  divorce,  was  an  inhabitant  of  the 
State  of  New  York;  and  the  court 
held,  that  although  the  record  of  a 
court  of  competent  jurisdiction  of  an- 
other State,  granting  a  divorce,  is 
conclusive,  and  entitled  to  full  faith 
and  credit,  yet  it  is  so,  only  as  to 
matters  clearly  and  distinctly  stated 
in  it,  and  not  as  to  those  which  are 
merely  inferable  by  argument  from 
the  judgment;  that  in  the  particular 
case,  the  record  of  divorce  was  no  evi- 
dence of  the  jurisdiction  of  the  court 
over  the  person  of  the  defendant  in 
those  proceedings,  because  no  fact  was 
stated  giving  jurisdiction ;  and  if  ju- 
risdiction was  inferable  at  all,  it  was 
only  so  by  argument  from  the  judg- 
ment; and  consequently  that  the  pre- 
sumption, under  the  circumstance'?, 
was  against  the  validity  of  the  de- 
cree. Harding  v.  Alden,  9  Me.  140; 
Harrison  v.  Harrison,  19  Ala.  499; 
Hull  V.  Hull,  2  Strobh.  Eq.  (S.  C.) 
174.  In  a  Kentuckv  case,  Scott  v. 
Coleman,  5  Litt.  (Ky.)  350,  the  rule 
on  this  subject  with  regard  to  the  or- 
dinary judgments  of  neighboring 
States,  is  laid  down  as  follows:  "Tliat 
when  the  judgment  or, decree  of  a  sis- 
ter State  is  produced,  rendered  by  one 
of  its  tribunals,  we  must  presume 
that  tribunal  had  jurisdiction  and 
authority,"  and  the  onus  of  impeach- 
ing it  is  thus  thrown  on  him  agaist 
whom  it  is  urged.  The  presumption 
as  to  jurisdiction  may  be  overcome  by 
proof  of  extrinsic  matters  which 
show  that  the  court  did  not  in  fact 
have  jurisdiction.  O'Eourke  v.  Chi- 
cago, &c.,  R.  R.  Co.,  55  Iowa,  332. 


722 


Evidence. 


[Cliap.  20 


general  jurisdiction.  But  what  is  a  court  of  limited  and  special 
jurisdiction,  as  contradistinguished  from  a  court  of  general  juris- 
diction, and  in  what  way  is  the  tribunal  before  which  a  judgment 
of  a  foreign  court  is  produced  to  determine  whether  such  court 
belongs  to  the  one  or  the  other  of  these  classes  ?  These  and  other 
points  suggest  themselves,  when  the  mind  is  brought  to  bear  upon 
the  subject,  and  without  attempting  anything  like  a  solution  of 
them,  we  shall  content  ourselves  with  using  the  terms  mentioned  as 
they  are  used  in  the  books.  In  respect  to  courts  of  general  jurisdic- 
tion, then  the  rule  is,  that  they  are  presumed  to  have  had  jurisdic- 
tion until  the  contrary  clearly  appears.^^ 

But  in  respect  to  courts  of  limited  and  special  jurisdiction,  the 
rule  is  different;  nothing  is  presumed  in  their  favor  so  far  as  it 
respects  jurisdiction;  and  the  party  seeking  to  avail  himself  of 
their  judgments,  must  show  affirmatively  that  they  had  juris- 
diction." 


"See  Mills  v.  Martin,  19  Johns. 
(N.  Y.)  33;  Thomas  v.  Robinson,  3 
Wend.  (N.  Y.)   267,  12  N.  Y.  156. 

This  rule  has  been  applied,  in  New 
York,  to  the  judgments  of  courts  of 
common  pleas  and  county  courts  of 
neighboring  States.  Thus,  in  an  early 
case,  Shumway  v.  Stillman,  4  Cow. 
(N.  Y.)  292,  debt  was  brought  on  a 
common  plea  judgment  of  Massachu- 
setts ;  the  defendant  plead  that  at  the 
time  of  the  commencement  of  the  suit 
in  which  the  judgment  was  obtained, 
and  ever  since,  he  had  been,  and  still 
was,  a  resident  in  Schenectady,  in  the 
State  of  New  York.  To  this  there 
was  a  general  demurrer,  which  the 
court  sustained,  on  the  ground  that 
the  defendant  had  not  expressly  nega- 
tived the  idea  that  he  appeared  to 
the  suit,  and  thus  conferred  juris- 
diction. "  Every  presumption,"  says 
Sutherland,  J.,  "  is  in  favor  of  the 
jurisdiction  of  the  court.  The  record 
is  prima  facie  evidence  of  it;  and 
will  be  held  conclusive,  until  clearly 
and  explicitlv  disproved."  Harrod  v. 
Barretto,  1  Hall  (N.  Y.),  155.  In 
Wheeler  v.  Raymond,  8  Cow.  (N.  Y.) 
311,  the  court  seem  to  hare  held  sim- 
ilarly in  respect  to  proceedings  of  a 
county  court  of  Vermont,  commenced 
under  a  statute  of  that  State  relating 
to  foreign  attachments.  The  same  doc- 


trine has  been  acted  on  in  Connecti- 
cut. Smith  V.  Rhoades,  1  Day  ( Conn. ) , 
168.  See,  also,  Pringh  v.  Woolworth, 
90  N.  Y.  502. 

"Mills  V.  Martin,  19  Johns.  (N. 
Y.)  33;  Peacock  v.  Bell,  1  Saund. 
73;  Kempe  v.  Kennedy,  5  Cranch 
(U.  S.),  173,  1  Pet.  (U.  S.  C.  C.)  30; 
Wheeler  v.  Raymond,  8  Cow.  (N.  Y.) 
311. 

Accordingly,  in  New  York,  where 
an  action  was  brought  on  a  justice's 
judgment  of  a  neighboring  State,  it 
was  held  that  it  could  not  be  sus- 
tained until  the  statute  creating  and 
organizing  the  court  was  produced 
and  proved,  that  it  might  be  seen 
whether  the  justice  had  jurisdiction 
or  not;  for  the  courts  of  one  State 
will  not  take  judicial  notice  of  the 
statutes  of  another.  Thomas  v.  Rob- 
inson, 3  Wend.  (N.  Y.)  267;  Sheldon 
v.  Hopkins,  7  id.  435. 

Now,  by  statute  of  New  York,  a 
transcript  from  the  docket  of  a  jus- 
tice of  an  adjoining  State  is  made 
presumptive  evidence  of  the  facts 
stated  in  such  transcript,  when  au- 
thenticated in  the  mode  prescribed  in 
the  act.  The  transcript,  however,  is 
liable  to  be  controverted  by  evidence 
in  all  its  parts  relative  to  the  validity 
of  the  judgment.  In  Indiana,  it  ap- 
peared  that   a  scire  facias  had  been 


Sec.  232.] 


Public  Documents. 


723 


A  still  further  inquiry  may  arise,  wheii  a  foreign  judgment,  or 
the  judgment  of  a  neighboring  State,  is  produced,  viz. :  What 
measure  of  jurisdiction  could  the  so^vereign  power  of  the  place 
where  the  judgment  was  rendered,  confer  upon  its  courts?  Con- 
sidered in  an  international  point  of  view,  jurisdiction,  to  be  right- 
fully obtained,  must  be  founded  either  upon  the  person  of  t!he  de- 
fendant being  within  the  territory  of  the  sovereign  where  the  court 
sits,  or  his  property  being  within  such  territory;  for  otherwise, 
there  can  be  no  sovereignty  exerted,  upon  the  known  maxim,  extra 
terrltorium  jus  dicenti  impune  non  paretur}^  Even,  therefone, 
should  the  legislature  of  a  nation  or  of  a  neighboring  State  ex- 
pressly grant  jurisdiction  to  its  courts  over  persons  or  property 
not  within  its  territory,  such  grant  would  be  treated  elsewhere  as 
a  mere  attempt  at  usurpation,  and  all  judicial  proceedings  in 
virtue  of  it,  held  utterly  void  for  every  purpose.^^ 


issued  by  a  justice  of  the  peace  of 
Ohio,  and  on  a  return  of  the  writ 
"  not  found,"  judgment  passed  for 
the  plaintiff,  upon  which  action  was 
brought  in  the  former  State;  and  it 
was  held,  that  the  judgment  having 
been  rendered  without  service  of  the 
writ  or  the  return  of  two  nihils, 
would  not,  on  common  law  principle-s 
support  the  action;  and  that  if  the 
judgment  was  authorized  by  a  statute 
of  Ohio  on  the  return  of  "  not  found/' 
such  statute  must  be  shown  by  the 
party  setting  up  the  judgment.  Cone 
V.  Cotton,  2  Blackf.  (Ind.)  82.  And 
in  regard  to  this  class  of  jurisdic- 
tions it  is  observable  generally,  that 
where  a  statute  prescribes  a  new  pro- 
ceeding, either  unknown  to  the  com- 
mon law  or  contrary  thereto,  the  stat- 
ute, so  far,  at  least,  as  those  parts 
of  it  essential  to  jurisdiction  are  con- 
cerned, must  be  not  only  proved,  but 
shown  to  have  been  strictly  pursued, 
or  the  proceeding  will  be  held  a  nul- 
lity. Earthman  v.  Jones,  2  Yerg. 
(Tenn.)  493.  The  same  has  been  said 
with  regard  to  summary  proceedings 
and  extraordinary  powers,  exercised 
by  any  court  under  a  special  statute. 
Thatcher  v.  Powell,  5  Wheat.  ( U.  S. ) 
119;  Holmes  v.  Broughton,  10  Wend. 
(N.  Y.)  75;  Collet  v.  Keith,  2  East, 
221;  Walker  v.  Maxwell,  1  Mass,  103. 


'*  Story's  Confl.  of  Laws,  450;  3 
Dig.  Lib.  2,  tit.  1,  ch.  20;  1  Boulle- 
nois'  Pr.  Gen.  1,  2,  pp.  2,  3;  Vattel, 
b.  2,  ch.  8,  §  84. 

"See  Buchanan  v.  Rucker,  ante; 
also,  Picquet  v.  Swan,  5  Mas.  (U.  S.) 
35;  Story's  Confl.  of  Laws,  450,  451; 
Kilburn  v.  Woodworth,  5  Johns.  (N. 
Y.)  37;  Robinson  v.  Ward,  8  id.  86; 
Borden  v.  Fitch,  15  id.  121;  Hall  v. 
Williams,  6  Pick.  (Mass.)  232; 
Flower  v.  Parker,  3  Mas.  (U.  S.) 
251;  Bartlett  v.  Knight,  1  Mass.  401; 
Miller  v.  Miller,  1  Bailey  (S.  C), 
242;  Earthman  v.  Jones,  2  Yerg. 
(Tenn.)  484;  Moren  v.  Killibrew,  id. 
376;  Rogers  v.  Coleman,  Hardin 
(Ky.),  413;  St.  Albans  v.  Bush.  4 
Vt.  58.  Whether  the  doctrine  ap- 
plies to  decrees  of  divorce  obtained 
in  one  State  strictly  according  to  the 
local  law,  and  sought  to  be  used  in 
another,  quere.  See  Harding  v.  Al- 
den,  9  Me.  140;  Bradshaw  v.  Heath, 
13  Wend.  (N.  Y.)  407.  In  Harding 
v.  Alden,  ante,  the  Supreme  Court  of 
Maine  seemed  to  think  that  it  did' 
not,  so  far  as  the  mere  question  of 
conjugal  rights  was  concerned,  they 
being  the  subject  of  a  suit  in  the  na- 
ture of  a  proceeding  in  rem;  but 
otherwise,  if  the  decree  was  sought 
to  be  enforced  as  to  alimony. 


724 


Evidence.  [Cliap.  20 


A  person,  however,  tliougli  a  citizen  of  another  State  or  country, 
when  he  comes  within  the  territory  of  a  particular  sovereignty, 
contracts  a  sort  of  temporary  allegiance  to  it,  and  may  justly  be 
subjected  to  its  process,  and  bound  personally  by  the  judgment  of 
its  courts.  And  whether  jurisdiction  is  founded  upon  the  person 
being  within  the  territory,  or  the  property  being  there,  the  judg- 
ment will  be  deemed  valid,  so  far  as  that  jurisdiction  could  legiti- 
mately extend ;  but  no  farther.  Thus,  a  very  common  course,  in 
many  of  the  United  States,  and  in  many  other  countries,  is  to 
proceed  against  non-residents  by  an  arrest  or  attachment  of  their 
property  within  the  territory.  Judgment  obtained  upon  process  of 
this  kind  will  generally  bind  the  property  so  arrested  or  attached ; 
for  to  that  extent  the  court  has  or  can  have  jurisdiction.  But  such 
judgment  will  not  be  regarded  by  neighboring  States  or  other 
nations  as  evidence  of  indebtedness  or  as  operative  in  any  measure 
in  personam;  and  for  this  very  obvious  reason,  viz.,  that  except 
so  far  as  the  property  attached  is  concerned,  there  is  and  can  be 
no  jurisdiction,  no  power  of  adjudication.^" 

\Miere  the  summons  is  served  upon  a  non-resident  by  publica- 
tion, if  the  defendant  has  property  in  the  State,  the  judgment  is 
limited  in  its  effect  to  such  property  in  the  State,  where  the  judg- 
ment is  obtained.^^  Without  service  of  process  the  judgment  is  of 
no  validity  out  of  the  State.^^ 

So  as  to  judgments  or  decrees  in  other  cases,  obtained  against 
persons  resident  abroad  without  notice  to  them,  and  an  oppor- 
tunity afforded  of  defending.^^     And  in  order  that  the  judgment 

""Picquet  v.    Swan,  ante;      Story's  Earthman  v,  Jones,   2  Yerg.    (Tenn.) 

Confl.    of     Laws.     461;      Kilburn    v.  484;    Hoxie   v.    Wright,    2    Vt.    263; 

Woodworth,    5    Johns.     (N.    Y.)     37;  Rogers    v.    Coleman,    Hardin     (Ky.j, 

Pawling    V.  Bird,   13    id.    192;     Sar-  413;     Newton    v.    Newell,    10     Pick. 

geant  on  Attachments,  112,   113,   114,  (Mass.)   470;   Starbuck  v.  Murray,  5 

et  seq.;    M'Clenachan  v.   M'Carty,   1  Wend.     (N.    Y.)     148;     Holbrook     v. 

Dall.   (Penn.)   375;   Phelps  v.  Holker,  Murray,      id.      161;        Bradshaw     v. 

id.      264;      Robinson     v.      Ward,      8  Heath,   id.   407;        Bates  v.   Delavan, 

Johns.   (N.  Y.)   86;     Borden  v.  Fitch,  5  Paige  (N.  Y.),  299,  305;  Armstrong 

15  id.  121;  Hall  v.  Williams,  6  Pick.  v.  Harshaw,  1  Dev.    (N.  C.)    188. 

(Mass.)    232;  Betts  v.  Death,  Addis.  -'Force  v.  Gower,  23  How.  Pr.    (N. 

(Penn.)    265;    Fenton  v.    Garlick,   8  Y.)    294. 

Johns.    (N.  Y.)    194,   197;    Flower   v.  "  Oakley  v.  Aspinwall,  4  N.  Y.  521. 

Parker,  3  Mas.    (U.  S.)    251;   Wilson  "Bellows    v.    Ingham,    2    Vt.    576, 

V.  Graham,  4  Wash.   (U.  S.  C.  C.)   53,  577;   Woodward   v.   Tremere,    6   Pick. 

57;  Bissell   v.   Briggs,    9   Mass.   462;  (Mass.)    354;     Newell  v.  Newton,  10 

Kibbe  v.  Kibbe,  Kirby   (Conn.),  119;  id.  472;     Bartlet  v.  Knight.   1  Mass. 

Dennison  v.  Hyde,  6  Conn.  508;     Al-  401;   Cone  v.  Cotton.  2  Blackf.   (Ind.) 

drich    V.    Kinney,    4     id.    380,    387;  82;      Moren    v.    Killibrew,    2    lerg. 


Sac.  232.]  Public  Documei^ts.  '^25 

under  these  circumstances  may  be  rendered  binding  upon  tlie  de- 
fendant m  personam,  the  notice  must  be  personally  served  upon 
hL      This  will  be  found  sustained  by  all  the  cases;  and  where 
noti'ce  was  given  by  publication  in  the  newspapers,   as  is  fre- 
Quently  done  in  certain  chancery  proceedings  m  several  of  the 
State/ to  bring  in  some  of  the  parties  who  were  absent,  it  was 
held,  that  a  decree,  pursuant  to  notice  of  that  character,  as  against 
such  absent  defendant.,  was  no  evidence  of  indebtedness        The 
notice  must,  moreover,  be  served  upon  the  de  endant  whde  he    s 
within  the  jurisdiction  of  the  sovereignty  under  which  the  court 
acts;  for  no  sovereign  has  a  just  right  to  issue  such  notice  to  the 
citizen  of  another  State  or  country,  and  thereby  draw  the  party 
from  his  own  proper  forum  ad  alimn  examen.''    But  if  the  party, 
in  any  of  these  ins'tances,  chooses  to  appear  and  contest  the  merits, 
thereby  waiving  his  personal  immunity,   and  submitting  to  the 
jurisdiction  of  the  court,  the  judgment  would  then  doubtless  bind 
him  personally,  and  be  entitled  to  the  same  measure  of  respect 
with  the  judgment  of  a  neighboring  State  or  a  foreign  country,  as 
the  case  may  be,  obtained  in  the  ordinary  mode.-     However,  it 
has  been  held  otherwise  in  cases  of  foreign  attacliments,^where  th. 
defendant  has  merely  appeared  to  protect  his  property. 

rT.nn^      m-      Thurber     v.     Black-  Bellows  v.  Ingham,  id.  575;  MayheNv 

bourne     1   N    H.  2^;      Bradshaw   v.  v.  Thatcher    6   Wheat.    (U    S  )    129; 

HeX  13  Wend.   (NY.)   407 ;     Hart  Wheeler  .  Raymond    8  Co^.     (N.^Y. 

V    Lodwick    8    La.    164;      Spence.    v.  311,   ?--;;, /^p^.^.^man,  12  S.  &^E. 
"'^^Vmefv.-Mnierl  Bailey  (S   C..        (?-•)   f87. 

242.     S-Morenv^lvahbrew^^^^^^^  PawHnTv.  Bird,  1  ' Johns.    (N.  Y.) 

•'Ten"-)      376       Cone     v.     couo  ,  ^^^      But  in   Starbuck  v.  Murray    5 

Blackf.  (ind.)   »^.  WatiH     (^    Y^   159   Marcy,  J.,  deliv- 

D:n!;'T$aI;e'T5.^S/v"Qj:  eTrn^ifo^^iof 'afte.  ve  e„in,  to 

Parker    3  Mas.   (U.  b.     ioi,   >v.im;  i  ^^^^  ^  j 

^S.^'wrawlrd  r  Tr  m;re    0  PPck.      concedeTlave  jurisdiction  over  the  de- 
fli.ssT    354     Har'rod  V    Barretto,  1       fendanfs    person    for   any    other   but 

^S^h^^^^'^      ^rdttar-l'lh^'e'^irretS: 

i:--fCKf€  ?■'  '''■■  ^ro^^r^r.^^a'^ittvo^r. 

?&4Sr"rir.ft'.  Sre.rild-°a-SlM 

tr'u    V  T^lliamr    G    Pick      (Mass  sub  ect     the     attaching    creditors     to 

?37     ShumwayT'sWlnan,  G  Wend.  costs  and  expenses,  which  i"  the  due 

mv  V  44^    Starbuck  v.  Murray,  5  course   of  the  proceedings,   should  be 

id   us!     Ho'xie  V  wSght,  2  Vt.  262 ;  adjudged  to  them  by  a  court  of  com- 


Y2G 


Evidence. 


[Cli.ap.  20 


If  tli3  party,  by  an  act  of  lawless  violence  on  the  part  of  a  few 
citizens  of  a  particular  State,  is  seized  and  brought  within  its 
jurisdiction  from  another  State,  it  has  been  held  that  he  may, 
nevertheless,  be  subjected  to  the  jurisdiction  of  the  courts  of  the 
State  into  which  he  is  so  brought.^^ 

Where  the  record  of  a  foreign  judgment  states  that  the  defend- 
ant appeared  by  attorney,  this  will  be  prima  facie  evidence  of  the 
fact,  and  the  attorney  will  be  presumed  to  have  been  regularly  con- 
stituted.^ 


petent  authority,  will  it  be  pretended 
that  he  could  resist  the  payment  of 
these  costs  on  the  ground  that  he  was 
not  subject  to  the  jurisdiction  of  the 
court?  For  all  the  fair  and  direct 
objects  of  the  suit,  he  was  within  its 
jurisdiction.  So  if  the  proceedings 
were  not  in  rem,  but  the  property  of 
the  defendant  was  attached  to  compel 
him  to  appear  and  answer  to  proceed- 
ings in  personam,  and  he  did  in  fact 
appear  and  litigate  the  cause  with  the 
plaintiff,  he  could  not  be  heard  to 
question  the  jurisdiction  of  the  court 
over  his  person.  I  do  not  think  Chief 
Justice  Parsons  intended  to  say  more 
than  this,  that  when  a  court  had  the 
jurisdiction  of  a  defendant  for  one 
purpose,  it  could  not  legally  bind  him 
by  a  judgment  or  sentence  in  a  dis- 
tinct and  different  manner."  See 
Moore  v.  Spackman,  12  S.  &  R. 
(Penn.)    287. 

^'^  State  V.  Smith,  1  Bailey  (S.  C), 
283 ;  Id.  290,  note  a. 

-"  Corbitt  V.  Timmerman,  95  Mich. 
581,  55  N.  W.  437,  35  Am.  St.  Rep. 
58G;  Malony  v.  Gibbons,  2  Camo. 
502.  See  Robinson  v.  Eaton,  1  T.  R. 
fi2;  Tipton  V.  Mayfield,  10  La.  189. 
So,  with  respect  to  judgments  as 
among  the  neighboring  States.  Field 
V.  Gibbs,  1  Pet.  (U.  S.  C.  C.)  isr,; 
Hall  V.  Williams,  G  Pick.  (Mass.) 
232;  Aldrich  v.  Kinney,  4  Conn.  380; 
Starbuck  v.  Murray,  5  Wend.  ( N.  Y. ) 
148;  Hoxie  v.  Wright,  2  Vt.  2G3; 
Shumway  v.  Stillman,  G  Wend.  (N. 
Y. )  447.  But  as  we  have  already 
seen,  some  diversity  of  opinion  exists 
whether  this  statement  of  appearance 
in  the  record  of  a  neighboring  State 
may  be  contradicted.  In  Field  v. 
Gibbs,   1   Pet.    (U.  S.  C.  C.)    155,  it 


was  held  it  could  not,  on  the  general 
principle  forbidding  the  impeachment 
of  records.  So  also,  in  Vermont, 
Hoxie  V.  Wright,  2  Vt.  263,  2G8 ;  and 
in  Massachusetts,  to  a  qualified  extent 
only,  however.  Hall  v.  Williams,  G 
Pick.  (Mass.)  232.  But  in  New  York 
and  Connecticut,  the  direct  contrary 
has  been  held;  and  in  the  former 
State  the  broad  ground  is  taken  that 
every  fact  stated  in  the  record  upon 
which  jurisdiction  depends,  may  be 
controverted.  Starbuck  v.  Murray,  ii 
Conn.  380;  Barber  v.  Winslow,  12 
Wend.  (N.  Y.)  102;  Shumwav 
v.  Stillman,  6  id.  447;  Brad- 
shaw  V.  Heath,  13  Wend  (N.  Y.; 
407,  418.  If  the  defendant  appears 
and  pleads,  though  his  appearance  be 
entered  informally  on  the  record,  the 
judgment  will  bind  him.  Baiik  of 
Middletown  v.  Huntington,  13  Abb. 
Pr.   (N.  Y.)   402. 

In  an  English  case,  the  validity  of 
judgments  rendered  against  persons, 
who  were  non-residents,  and  had  no 
actual  notice  of  the  suit,  and  did  not 
appear  and  answer  the  same,  came 
before  the  court  of  common  pleas  of 
England,  upon  a  Scottish  judgment 
rendered  against  a  Scottish  absent^?, 
upon  due  attachment  of  his  heritable 
property  in  Scotland,  and  due  procla- 
mation by  what  there  is  technically 
called  horning,  and  a  judgment  by  de- 
fault for  non-appearance.  An  action 
of  debt  was  brought  on  the  judgment, 
and  the  question  was,  whether  it  was 
void  or  not.  It  was  held,  that  it  wa*? 
valid.  This  was  partly  the  result  of 
the  articles  of  union  between  Scot- 
land and  England,  and  partly  of  the 
recognition  of  such  practice,  as  valid, 
by  a  British  act  of  parliament;   and 


Sec.  232.]  Public  Documents.  72Y 

Thus  far,  to  avoid  unnecessary  prolixity,  we  have  treated  of 
foreign  judgments  and  judgments  as  among  the  neighboring 
States  of  the  Union,  without  discriminating  very  particularly, 
except  in  a  few  instances,  between  the  two  classes ;  for,  in  regard 
to  the  matters  relating  to  jurisdiction  which  we  have  noticed,  there 
is  seldom  a  discernible  shade  of  difference  between  them.  The 
latter  class,  however,  owing  to  the  provisions'  of  the  act  of  congress 
and  the  constitution,  before  referred  to,  may,  perhaps,  with  re- 
spect to  some  other  particulars  under  this  head,  claim  a  distinct 
and  separate  consideration. 

Where  the  legislature  of  a  State  has  undertaken  to  confer  upon 
its  courts  the  power  of  exercising  jurisdiction  over  the  persons  of 
the  citizens  of  other  States,  who  have  in  no  sense  subjected  them- 
selves to  its  authority,  nor  been  within  its  territory,  we  have  seen 
that  all  judgment's  rendered  in  pursuance  of  such  regulations  will 
be  held  utterly  void.  The  legis'lature,  the  principal,  having  no 
jurisdiction,  can  confer  none  upon  its  agents,  the  courts.^''  But, 
in  respect  to  its  own  resident  citizens,  it  is  undoubtedly  competent 
for  the  legislature  to  prescribe  such  mode  of  judicial  proceeding  as 
it  may  deem  proper ;  to  direct  the  manner  of  serving  process,  the 
notice  which  s'hall  be  given  to  defendants,  and  to  declare  the  effect 
of  a  judgment  rendered  in  pursuance  of  such  notice.^^     Should  a 

partly  also  of  the  fact  that  the  judg-  their  courts  to  decide  on  the  right  of 

ment  was  against  a  Scottish  subject.  parties  who  owed  no  allegiance  to  the 

Best,  J.,  who  delivered  the  opinion  of  government  of  such  country,  and  wero 

the    court,    said:     "A    natural    born  under    no    obligation    to    attend    its 

subject  of  any  country,  quitting  that  courts,  or  obey  its  laws.     Wc  confine 

country,  but   leaving  property   under  our   judgment    to    a    care   where    ths 

the  protection  of  its  laws,  even  during  party  owed  allegiance  to  the  country 

his   absence,  owes   obedience  to  those  in  which  the  judgment  was  so  given 

laws,    particularly    wheu    those    laws  against  him,   from  being   born   in   it, 

enforce   a  moral  obligation.     The  de-  and  by  the  laws  of  which  country  his 

ceased,  before  he  left  his  native  coun-  property  was,  at  the  time  those  judg- 

try,    acknowledged    under    his    hand,  ments    were    given,    protected.        The 

that  he  owed  the  debts;   he  was  under  debts  were  contracted  in  the  country 

a  moral  obligation  to  discharge  those  in  which  the  judgments   were  given, 

debts  as  soon  as  he  could."     After  ad-  whilst    the     debtor     resided     in     it." 

verting  to   the   case   of   Buchanan    v.  Douglass    v.    Forrest,    4     Bing.    686. 

Rucker,  and   some  others,  he   added:  See,  also,  Meeus  v.  Thelluson,  20  Eng. 

"To    be    sure    if    attachments    issued  L.   &   Eq.   465;      Gould   v.   Webb,    82 

against     persons     who     were     never  Eng.  C.  L.  932,  76  id.  787. 
within  the  jurisdiction  of   the  court  '"Per    Catron,     J..     Earthman    v. 

issuing  them,  could  be  supported  and  Jones,  2  Yerg.   (Tenn.)   484. 
confirmed  in  the  country  in  which  th'3  ''  Per  Williams,  J.,   Beech   v.   Ab- 

person   attached   resided,    the   legisla-  bott,  6  Vt.  591.    See,  also.  Douglas  v. 

ture  of  any  country  might  authorize  Forrest,  4  Bing.  866,  per  Best,  C.  J. 


72 S  Evidence.  [Cikap.  20 

State,  then,  adopt  absurd  or  uujust  provisions  in  this  respect,  and 
give  full  jurisdiction  to  its  courts  over  resident  citizens  without 
requiring  any  thing  more  than  a  constructive  notice  to  them; 
should  it  allow,  for  instance,  the  rendition  of  a  judgment,  after 
service  of  process  upon  the  property  of  the  defendant,  or  by  pub- 
lication of  notice  in  the  newspapers,  or  by  affixing  the  same  against 
the  door  of  a  court-house  or  church,  and  declare  such  judgment 
final  and  conclusive,  what  would  be  its  effect  in  a  neighboring 
State  ?  If  it  were  a  strictly  foreign  judgment,  it  might,  perhaps, 
be  treated  as  a  nullity,  provided  there  was  clearly  no  appearance, 
and  no  opportunity  of  defending ;  but  such  is  not  the  case.  It  is 
now  settled,  by  as  strong  and  unbroken  a  current  of  authority  as 
can  be  brought  to  bear  in  favor  of  any  position,  that  the  several 
States  in  this  respect  are  not  foreign  to  each  other ;  that  the  effect 
to  which  the  "  acts,  records  and  judicial  proceedings  "  of  one 
State  are  entitled  in  the  courts  of  a  neighboring  State,  does  not 
depend  upon  volition  or  comity  as  among  the  respective  members 
of  the  Union,  but  is  defined  and  peremptorily  enforced  by  the 
paramount  sovereignty  of  the  Federal  government.  Many  of  the 
deeisiong  seem  at  a  first  glance  to  maintain  the  doctrine  that  judg- 
ments obtained  without  personal  notice  to  the  defendant,  and 
without  any  opportunity  afforded  him  of  contesting  the  plaintiff's 
claim,  would  not  come  within  the  general  rule,  but  constitute  an 
exception  to  the  provisions  of  the  constitution  and  the  act  of  con- 
gTess."^  But  on  examination  it  will  be  seen  that  these  authorities 
all  relate  to  cases  where  the  per&'on  against  whom  the  judgment 
was  pronounced  was  a  resident  citizen  of  another  State  when  the 
suit  was  commenced,  and  had  contracted  no  allegiance  to  the 
sovereignty  where  the  court  sat,  nor  given  it  any  power  over  him. 
They  proceeded  upon  the  total  absence  of  jurisdiction  in  the  court 
not  only,  but  the  sovereignty  under  which  the  court  acted  and  the 
absolute  impossibility  of  acquiring  jurisdiction  without  the  party's 

"Aldrich  V.  Kinney,  4  Conn.  380;  Cow.   (N.  Y.)   311;  Andrews  v.  Mont- 

Kibbe  V.  Kibbe,  Kirby   (Conn.),   119;  gomery,  19  Johns.   (N.  Y.)   162-  Bart- 

Robiiison  V.  Ward    8  Johns.    (N.  Y.^  lett  v.  Knight.  1  Mass.  401;  Jacobs  v. 

8G;    Fenton  v.  Garliek,  id.   194;   Kil-  Hull,   12  id.  25;   Bissell  v.   Bii-gs,  0 

burn  V    Woodvvorth,  5  id.  37;  Borden  id.    462;    Hall   v.    Williams,    6    Pick. 

Tq    •       'loo   'i;.^^?'  f^^^'i"??  V-  Bir=^'  (Mass.)    232;   Woodward  v.  Tremere, 

]xr    ',      1J2:    btarbuck   v.    Murray,    5  id.   354;    Dennison  v.   Hyde,   6    Conn. 

V\end    (Js    Y.)  148;  Holbrookv.  Mur-  508;     Rogers     v.     Coleman      Hardin 

ray,   id.    161;    Shumway  v.   Stillman,  (Ky.),  413. 
6   id.    447;    Wheeler   v.    Raymond,   8 


Sec.  232.] 


Public  Documeistts. 


729 


consent  in  such  cases.  The  question,  therefore,  as  to  judgments 
rendered  in  accordance  with  the  local  law  by  a  State  court  against 
its  resident  citizens,  over  whom  it  has  exclusive  sovereignty,  did 
not  arise  and  was  not  discussed.^^ 


"Thurber  v.  Blackbourne,  1  N.  H. 

242. 

In  a  New  Hampshire  case,  Bell,  J., 
delivering   the   opinion   of   the   court, 
lays  down  a  position  which,  if  correct, 
would     indiscriminately    exempt     all 
iudgments  of   other   States   from   the 
operation  of  the  act  of  congress  and 
the  constitution,  provided  they  were 
obtained   without   personal   notice    to 
the  defendant  and  an  opportunity  af- 
forded him  of  defending.    "  The  words 
records  and  judicial  proceedings,     he 
says    "are  words  of  definite  meaning 
at  common  law,  and  by  settled  legal 
rules  in  the  construction  of  statutes 
they   are   to   have  the  same  meaning 
attached   to  them  when  used  in  this 
statute.     The  common  law  never  re- 
cognized judicial  proceedings  as  for- 
eign judgments,  unless  rendered  by  a 
court  of  record  upon  personal  notice 
given  to  the  defendant,  or  his  appear- 
ance  to   the   action.      Without  these 
requisites,  such  foreign  judgment  is  a 
mere  nullity,  and  does  not  afford  even 
vrima  fade  evidence  of  a  debt.  Fisher 
v    Lane,  3  Wilson,  303 ;   Buchanan  v. 
Eucker,  9  East,  192.    The  judicial  pro- 
ceedings or   judgments     contemplated 
by   the  act   of    1790,  were,  therefore, 
not  judgments   rendered   without  no- 
tice  to  the   defendant  or   appearance 
to   the   action,   but   judgments   which 
were  recognized  and  enforced  at  com- 
mon law  as  foreign  judgments.    Judg- 
ments of  the  courts  of  record  of  one 
State,  rendered  without  notice  or  ap- 
pearance of  the  defendant,  when  sued 
in   the   courts   of   another   State,   aro 
therefore  not  affected  by  the  statute  of 
1790,  but  remain,  as  at  common  law, 
mere  nullities,  unless  within  the  juris- 
diction   where    they    were    rendered. 
And  see  Hall  v.  Williams,  10  Me.  278 
A    similar    doctrine    has    been   acted 
upon  in  Indiana.     Thus,  in  an  action 
on  a  Kentucky  judgment.  Holt  v.  Allo- 
way,    2    Blackf.    (Ind.)    108,   the    de- 
fendant pleaded    that    the  judgment 
was   obtained   against  him    on   a   re- 
cognizance of  special  bail  without  any 


notice  having  been  served  on  him,  and 
without  any     ca.  sa.  having  been   is- 
sued against   his   principal.     To   thi.=( 
plea   there   was   a   general    demurrer, 
which    was    overruled    and    judgment 
given    for   the   defendant,   because    no 
ca.  sa.  had  gone.     The  court,  after  ob- 
serving that  the  judgment  of  a  neigh- 
boring  State   may   be    impeached    for 
fraud,    or   for     want   of    jurisdiction, 
say:    "The  cause  under  consideration 
does    not    belong    to    either    of    those 
classes  of  cases.     On  the  one  hand,  it 
is  a   case  to  which,  for  want  of  per- 
sonal notice,  the  act  of  congress  giv- 
ing   to    the    judgment    of    one    State 
when  sued  upon  in  another,  the  same 
conclusive  effect  as  it  has  wliere  ren- 
dered, does  not  properly  apply.  That 
act  is  based  upon  tlie   principle  that 
the  merits  of  a  cause  once  fairly  and 
fully    tried    and    determined     in     one 
State    should    not   be   subject    to   the 
subsequent  investigations    and    decis- 
ions of  the  courts  of  other  States;  but 
a  judgment  rendered,  like  the  one  in 
question,  in  the  absence  of  the  defend- 
ant, and  without  any  personal  notice 
to  him  of  the  suit,  cannot  be  said  to 
have   been   thus  fairly   obtained,    and 
consequently    does    not    come    within 
the  principle  of  the  act  of   congress. 
On  tiie  other  hand,  although   the  de- 
fendant had  no  personal  notice  of  the 
original  suit,  yet  it  does  not  appear 
but    tliat   he   was   a    resident    of    the 
State   of   Kentucky   when    the    action 
was   commenced,   and   that   the   judg- 
ment   was     recovered     in    conformity 
with  the  laws  of  that  State,  we  would 
not,  it  is  conceived,  be  warranted  in 
determining   that    the     court    had   -lo 
jurisdiction.      We    are,    therefore,     of 
opinion,   that   according   to   the   facts 
on  record,  the  judgment  in  this  case 
must  be  viewed  not  as  conclusive,  for 
the   want  of   personal  notice;   not  as 
absolutely   void,    since   the    defendant 
must  be  presumed  a  resident  of  Ken- 
tucky when  the  suit  was  commenced, 
and   amenable   to   its   laws;    but    we 
must  consiaer  it  as  a   foreign  judg- 


730  Evidence.  [Chap.  20 

Notwithstanding  some  respectable  opinions  to  the  contrary,  it 
may  be  said  that  in  order  to  give  the  constitution  and  act  of  con- 
gress their  legitimate  effect,  both  principle  and  authority  require 
that  the  judgment  of  a  neighboring  State  should  be  treated  in  all 
respects  as  though  the  court  before  which  it  is  brought  were  sitting 
and  acting  under  the  laws  of  the  State  where  it  was  rendered.^*  If 
it  would  be  conclusive  there,  it  should  be  held  equally  so  in  every 
other  State.  An  exception  to  the  generality  of  this  proposition 
might  very  properly  be  allowed  where  the  local  law,  in  virtue  of 
which  the  court  rendering  the  judgment  proceeded,  infringed  upon 
the  sovereignty  of  other  States  with  regard  to  their  own  citizens; 
but  thus  qualified,  it  will  be  found  to  be  fully  sustained.^^ 

ment  and  prima  facie  evidence  of  the  '*  Hinton    v.    Townes,    1    Hill     (N. 

debt.     It  is  per  se  a  cause  of  action,  Y. ),    439;     Hunt    v.     Lyle,     8    Yer^. 

and   may   be   declared   on    as    in    the  (Tenn.)    142. 

present  case  without  setting  forth  the  ^  Glenn   v.    Williams,    GO    Md.    98 ; 

original  demand.  Its  justice,  however.  Allison    v.    Chapman,    19    Fed.    Rep. 

is   subject   to   be   impeached;    and   it  488;    Clark  v.   Child,   136  Mass.   844. 

may  be  shown  to  have  been  unduly  or  Judgments    of   other    States   have   no 

irregularly    obtained.      See    Cone    v  extra  territorial  force  as  judgments. 

Cotton,  2  Blackf .  ( Ind. )  82 ;  Elliott  v  Elizabeth  Savings  Inst.  v.  Gerber,  34 

Ray,  id.  31.  N.  J.  Eq.  130. 


INDEX, 

(The  references  are  to  pages.) 


ABANDONMENT. 

of  right  not  presumed,  207. 
ABBREVIATIONS. 

evidence  of  meaning  of,  166. 
judicial  notice  of,  597,  598,  599. 

ABSENCE. 

presumption  of  seven  years',  186. 

ACCEPTANCE. 

presumption  of  acceptance  of  advantage,  243,  note  08. 

ACCOUNT  BOOKS. 

See  Entries  in  Coukse  of  Business. 

ACCOUNTS. 

presumption  as  to  correctness,  194. 
burden  of  proof  as  to,  611. 

ACKNOWLEDGMENT. 

parol  proof  of  official  character  of  one  taking,  9. 

ACQUIESCENCE. 

of  claimant  leading  to  presumption  of  title  in  possessor,  243,  note  68. 
admissions  from  acquiescence,  545. 
conversation  distinguished  from  letters,   547. 

ADMISSIONS. 
kinds  of, 

direct  and  incidental,  542.    f 

implied  from  conduct,  543. 

from  acquiescence,  545. 

conversation  distinguished  from  letters,  547. 

acted  upon  by  others  to  their  prejudice,  502. 

offers  of  compromise,  537. 

declarations  introduced  by  opponent,  469. 

(731) 


Y32  Index. 

ADMISSIO'NS— Continued, 
kinds  of — Continued. 

return  of  officer  as  evidence,  465,  466,  467,  468. 
under  oath  in  deeds,  etc.,  567. 
indorsement  of  payment  on  note,  468. 
words  spoken  in  sleep  not  evidence,  256. 
testimony  at  former  trial  as,  472,  note- 
record  of  coroner's  inquest,  460. 
as  res  gestae,  461. 
conclusive  admissions,  551. 
pleading,  552. 

effect  of  plea  of  general  issue,  etc.,  555. 

omitting  to  traverse,  560. 

new  assignment,  560. 
effect  of, 

where  and  how  a  party  may  discredit  his  admissions,  485. 
weight  to  be  given  to  admissions  or  declarations,  483,  541. 
when  admissions  of  a  party  dispense  with  best  evidence  rule,  11. 
whole  admission  must  be  taken  together,  475. 
applies  to  written  as  to  verbal  admissions,  480. 
applies  only  to  matter  before  courts  482. 
of  non-payment  of  debt,  228. 
Jy  ivhom, 

by  agent,  506. 

knowledge  of  or  notice  to  agent,  affects  principal,  when,  520. 
by  attorneys,  503. 

by  corporate  officers  and  agents,  568. 

by  guardians,  nominal  parties  to  the  record,  executors,  etc.,  527. 
by  husband  or  wife,  499. 
by  those  engaged  in  illegal  purpose,  473,  496. 
parties  to  negotiable  paper  generally,  487. 
by  an  indorser,  491. 
by  a  former  owner  of  a  note,  492. 
parties  to  a  suit,  459. 
by  nominal  party,  487,  527. 
co-plaintiflfs  or  co-defendants,  497. 
by  privies,  530. 

rule  as  to  privies  applicable  in  eases  of  personalty,  533. 
one  or  two  or  more  persons  united  in  interest,  498. 
principal  and  surety,  332,  536. 
by  one  legatee  under  will,  472. 
0/  what, 

admissions  to  prove  matter  of  record,  12. 

ADVERSE  POSSESSION,  209-215. 

effect  of  declarations  by  possessor,  435. 


Index.  Y33 

AGE. 

evidence  of,  281. 

is  not  in  itself  pedigree,  276. 

court  not  take  judicial  notice  of    599. 

AGENCY. 

proof  of  appointment  and  powers  of  agent,  7,  8. 

parol  evidence  of  agency  of  one  signing  writing,  42,  43. 

presumption  raised  by  acting  as  agent,  195. 

parol  evidence  to  show  signature  as  agent,  107. 

declarations  and  admissions  of  agent   50G. 

knowledge  of  or  notice  to  agenl,  affects  principal,  when,  520. 

ALMANAC. 

entry  in  to  prove  pedigree,  278. 
judicial  notice  of  facts  in^  582. 

ALTERATION  OF  INSTRUMENTS, 
presumption  as  to,  202. 
burden  of  proof  as  to,  612,  613. 
assignment,  204. 
bond,  203. 
contract,  98. 

deed,  204,  205.  * 

negotiable  instruments,  202j  205, 
spoliation,  206. 

AMBIGUITY, 
latent,  38. 

parol  evidence  as  to,  128. 
patent,  52. 

parol  evidence  as  to,  130. 
created  by, parol  proof  of  usage,  174. 

ANCIENT  DOCUMENTS, 
to  prove  pedigree,  276. 
to  prove  ancient  possessions,  286,  293. 
position  of  parties  presumed  to  be  as  stated  in,  302. 
judgments,  decrees  and  orders,  299. 
manorial   documents,  295. 
maps,  284,  286,  295. 
perambulations,  293. 
public  records,  372. 
verdicts,  297. 

ANCIENT  POSSESSIONS. 

rule  of  evidence  of  ancient  documents,  286. 

grounds  upon  which  these  rules  are  founded,  300. 

position  of  parties  presumed  to  be  as  stated  in  ancient  documents,  302. 


734  Index. 

ANCIENT  TOSSESSlOiaS— Continued, 
evidence  of, 

hearsay  admissible  to  prove,  when,  282. 
hearsay  not  admissible  to  prove  private  title,  289.    ' 
proof  of  modern  exercise  of  right,  303. 
judgments,  decrees  and  orders,  299. 
manorial  documents,  295. 
maps,  284,  286,  295. 
perambulations,  293. 
public  records,  372.       / 
old  documents,  293.      '■ 
verdicts,  etc.,  297. 
ANIIVIAL. 

pedigree  of,  proved  by  reputation,  276.  [ 
APPRAISEES. 

certificate  of,  674. 
ANTE  LITEM  NOTAM. 

See  Lis  Mota. 
ASSESSMENT. 

of  real  property,  evidence  of,  6. 
ASSIGNMENTS. 

parol  evidence  as  to,  117. 
alteration  of,  204. 

shoT^Ti  by  parol  to  be  for  security  only,  104. 
ATTORNEY. 

bound  to  produce  client's  papers  on  notice,  32. 
admissions  by,  503. 

judicial  notice  of  reasonableness  of  fee,  596^  598. 
AUCTIONEER. 

auctioneer's  memorandum,  copy  insufficient,  2. 

B. 
BANK. 

books  as  evidence,  467. 

proof  of  bank  books,  373,  374. 

entries  in  bank  books,  when  admissible,  361,  371,  373. 

BANK  OF  ENGLAND. 

records  of,  distinguished  from  records  of  banks  in  this  country,  371,  373, 
374. 

BELIEF. 

of  party,  proof  of,  250. 

BEST  AND  SECONDARY  EVIDENCE. 

best  evidence  rule.     What  is  primary  evidence?  1. 

rule  as  to  merely  collateral  matters,  7. 

rules  as  to  things  which  cannot  be  produced  in  court,  9. 


Index.  ^35. 

BEST  AND  SECONDARY  EYWEi^CE-Continued. 

when  admissions  of  a  party  dispense  with  the  rule,  11. 

copies,  13. 

copies  to  refresh  recollection,  349,  353. 

secondary  evidence,  what  is;  admissible  when,  13. 

what  secondary  evidence  of  writings  sufficient,  32. 

memorandum  of  witness  is  secondary  evidence,  346,  352. 

loss  of  paper,  how  established,  16. 

search,  sufficiency  of,  19. 

requisites  of  notice  to  produce  paper  in  possession  of  the  adverse  party,  24. 

when  notice  to  produce  is  unnecessary,  27. 

effect  of  notice  to  produce  papers,  29. 

BIBLE. 

entry  in  family,  279. 

BILLS  AND  NOTES. 

See  Negotiable  Insteuments. 

BILLS  OF  LADING. 

parol  evidence  as  to,  120. 

BILLS  OF  SALE. 

parol  evidence  as  to,  121. 

BIRTH. 

proof  of  by  parol,  8. 
records  of,  as  evidence,  640. 

BLIND. 

use  of  memorandum  by  blind  person,  355. 

BOND. 

delivery  in  escrow,  88. 
alteration  of,  203. 

BOOKS. 

of  bank.     See  Bank. 

of  corporation.     See  Cobpobation. 

shop  and  account.     See  ExNtries  in  Course  of  Business. 

entries  in  private  books  against  interest,  371. 

reports  on  loose  sheets  copied  in  book  kept  as  record.  3. 

of  Bank  of  England,  copies  of  as  evidence,  10. 

BOUNDARIES. 

hearsay  admissible  to  establish  private,  307. 

when  hearsay  is  not  admissible,  313. 

declarations  of  deceased  surveyors,  310. 

of  persons  shown  to  have  been  in  a  situation  to  know,  311* 

declarations  of  owners  against  interest,  314. 

See  SuBVETOR. 


736  Index. 

BURDEN  OF  PROOF. 

general  rules  as  to,  605. 
different  meanings  of  term,  605. 
test  to  determine  who  has,  610. 
who  is  to  begin,  621. 

in  action  to  recover  lands,  624. 
right  to  reply,  625. 
in  action  of  account,  611. 
as  to  affirmative  defences,  608. 
as  to  agency,  612. 
as  to  alterations,  613. 
as  to  fraud,  614. 

as  to  lost  notes  and  documents,  620. 
as  to  negative  propositions,  616. 
as  to  contributory  negligence,  609. 
as  to  negligence  of  carrier,  614. 
as  to  undue  influence,  199,  200. 
in  action  on  policy  of  life  insurance,  622. 
to  prove  license,  618. 

0. 

CARBON  COPY. 

a  duplicate  original,  3. 

CARRIERS. 

presumption  of  negligence  by,  196. 
burden  of  proof  as  to  negligence  of,  614. 

CERTIFICATES. 

certified  copies,  34. 

by  appraisers,  inspectors,  etc.,   674. 

by  clerks,  668. 

consular,  673. 

by  executive  officers,  666. 

of  foreign  oflScers,  664. 

by  judicial  officers,  669. 

by  land  officers,  675. 

official,  655. 

of  surveyor,  665. 

CHALK, 

admissibility  of,  11. 

CHARACTER. 

presumption  as  to,  198,  239. 
evidence  as  to,  198. 

CHURCH  REGISTERS. 

as  evidence  to  prove  birth,  marriage  and  death,  641. 


Index.  ^^^ 


CLERK. 

certificate  by,  668. 

entries  in  shop  books  by.    See  Entries  in  Course  of  Business. 

COLLATERAL  AGREEMENT, 
proof  of,  82-84. 

COLLATERAL  MATTERS. 

rule  as  to  best  evidence  of,  7. 

varying  writings  by  proof  of,  81. 

connected  with  principal  fact  as  part  of  res  gestae,  420,  422. 

admissibility  of,  in  declaration,  335,  336,  337,  339,  342. 

COMMON  KNOWLEDGE. 

judicial  notice  of  matters  of,  587. 

COMMON  LAW. 

of  another  State  or  country,  how  proved,  640. 

COMPROMISE. 

offers  of,  as  admissions,  537. 

CONDITIONS. 

precedent  to  validity  of  writing,  88,  89. 
subsequent  to  validity  of  writing,  89. 
conditional  delivery  of  writing,  88. 

CONDUCT. 

admissions  implied  from,  543. 

admissibility  of  conduct  of  parties  at  the  time  of  and  after  the  execution 
of  a  writing,  55. 

CONSIDERATION. 

want  or  failure  of,  81,  90-93. 

CONSPIRACY. 

presumed  from  circumstances,  242. 

declarations  of  conspirators,  when  evidence  against  co-conspirators,  452. 
statements  of  conspirators,  when  not  part  of  the  res  gestae,  455. 
writings  in  possession  of  conspirators  before  or  after  apprehension,  455. 

CONSTABLE'S  RETURN. 
effect  of  as  evidence,  630. 

CONSULAR  CERTIFICATES,  673. 

CONTEMPORANEOUS  WRITINGS. 

all  considered  to  determine  intent  of  parties,  109. 

CONTINUANCE.  . 

of  fact,  presumption  as  to,  184,  239. 

of  life,  effect  of  seven  years'  absence,  186,  239. 


738  Index. 

CONTRACT. 

proof  of  collateral  agreement,.  82-84. 

independent  contract  entered  into  as  an  inducement  to  execution  of  prin- 
cipal contract,  parol  evidence  as  to,  108. 

several  writings  may  be  looked  at  to  determine  the  real  contract  and  in- 
tention of  the  parties,  109. 

discharge  and  satisfaction  of,  100. 

parol  evidence  to  vary.     See  Parol  Evidence  as  to  Writings. 

COPIES. 

exemplified,  34,  651. 

office,  34,  652, 

examined,  35,  653. 

certified,  35,  654. 

are  secondary  evidence,  13. 

carbon  copy,  a  duplicate  original,  3. 

refreshing  recollection  from,  349-353. 

CORONER. 

record  of  inquest,  460. 

depositions  at  coroner's  inquest,  458. 

CORPORATIONS. 

charters  are  private  acts,  575. 

admissions  by  corporate  officers  and  agents,  568. 

hooks  of, 

rules  as  to  admission  of,  365. 

proof  of,  367. 

not  conclusive,  366. 

parol  evidence  to  vary,  116. 

as  evidence  in  its  favor,  367,  370. 

admissibility  in  actions  between  strangers,  368,  369. 

to  show  who  are  stockholders,  366,  369. 

as  evidence  of  regularity  of  corporate  action,  370. 

of  municipal  corporation,  371. 

ancient  public  records,  372. 

of  religious  society,  375. 

COUNTY  BOARD. 

parol  evidence  to  vary  journals  of,  117. 

COURTS. 

jurisdiction  presumed,  219,  247. 

COVERTURE. 

may  be  shown  to  avoid  contract,  when,  88. 

CRIMINAL  RECORD. 

record  of  conviction,  validity  of.  690. 
competency  of  evidence  of  acquittal,  684. 


Index.  739 

CURRENCY. 

judicial  notice  of,   576. 

CUSTOM  OR  USAGE,  133-174. 
In  General, 

qualities  and  proof  of  binding  usage,  135. 

usage  must  be  reasonable  and  legal,  152,  160. 

need  not  necessarily  be  general,  140. 

custom,  judicial  notice  of,  576. 

usage  conflicting  with  rule  of  law,  169. 

custom  and  usage  distinguished,  151. 
Evidence  of, 

parol  evidence  of  usage,  admissible  when,  133. 

antiquity,  140,  173. 

notoriety,  141,  146,  151,  152. 
must  be  established  by  instance  of  its  application,  136,  144,  145. 
general  usage,  how  established.     By  one  witness,  137,  145,  150. 

mere  conflict  of  evidence  as  to,  does  not  defeat,  149. 

ignorance  of  those  who  should  know  custom  as  evidence  of  its  non- 
existence, 173. 
Use  and  application  of, 

mercantile  usage,  proof  of,  135. 

local  usage,  151. 

efl"eet  of  local  or  trade  usage,  151. 

to   explain   technical  terms,    157,    163. 

usage  in  particular  market,  159. 

usage  as  a  means  for  ascertaining  the  meaning  of  words  and  phrases, 
163. 

rules  when  word's  have  well  defined  meaning,  157,  167-170. 

usage  may  add  incidents  to  contracts.     Illustrations,  170. 

rule  when  ambiguity  is  created  by  parol  proof,  174. 

hearsay  to  prove  general  or  public  custom,  262. 

to  make  certain  entries,  341. 

to  vary  lease,  131. 

to  explain  technical  words,  157. 

of  individuals,  237^  238. 

CUSTOM  HOUSE  RECORDS, 
as  evidence,  681. 
contents  of,  how  proved,  10. 


D. 

DAMAGES. 

presumptions  as  to.  206. 

DE  FACTO  OFFICERS. 

regularity  of  appointment  presumed,  221-226. 


740  Index. 

DEATH. 

proof  of,  by  parol,  8. 
records  of,  as  evidence,  640. 

DECEASED  PERSON. 

See  Declarations  of  Deceased  Persons  Against  Interest. 

DECEIT. 

in  procuring  contract,  may  be  shown  by  parol,  S4. 

DECLARATIONS  OF  DECEASED  PERSONS  AGAINST  INTEREST, 
general  rule,  327. 

kinds  of  declarations  admitted,  327. 
conditions  precedent  to  tlie  admission  of,  328. 
entries  in  private  books,  etc.,  331. 

admissibility  as  against  surety  of  declarations  of  principal,  332.. 
person  making  must  be  dead,  336. 
illustrations  of  the  application  of  this  exception,  335. 
admissibility  of  collateral   matters   in  declaration  not  against   interest, 

335-337,   339.  342-344. 
distinctions  between  rules  as  to  entries  made  by  persons  in  course  of  busi- 
ness and  as  to  declarations  of  deceased  persons,  342. 

DECLARATIONS  IN  COURSE  OF  BUSINESS. 
See  Entries  Made  in  Course  of  Business. 

DECLARATIONS  UNDER  OATH,  457. 

DECREE. 

See  Judgment  and  Decree. 

DEDICATION. 

statement  by  donor  as  evidence  of  his  intention,  432. 

DEED. 

ancient  deeds,  see,  276,  284-286,  293,  302. 
title  by,  must  be  proved  by  deed  itself,  3. 
parol  evidence  as  to,  132. 
shown  by  parol  to  be  mortgage,  104-J06. 
admissions  under  oath  in,  etc.,  567. 
burden  of  proof  as  to  alteration  of^  613. 
presumption  from  alteration  of,  204,  205. 

DEPOSITION. 

prerequisites  to  admission  of,  4, 

DESCRIPTION  OF  REAL  ESTATE 
See  Lands. 

DESTRUCTION. 

of  writing,  evidence  and  effect  of,  17-19. 


Index.  Til 

DIARY. 

entries  in,  360. 

DILIGENCE. 

in  search  for  lost  paper,  19-24. 

DOCUMENTARY  EVIDENCE. 
See  Public  Documents. 

DOMICIL. 

burden  of  proof  as  to,  618,  note  5. 

DUPLICATES. 

contracts,  etc.,  executed  in  duplicate,  each  is  an  original,  5. 
diligent  search  for,  21. 

DYING  DECLARATIONS, 
when  admissible,  320. 
to  what  matters  admissible,  324. 
declaration  must  be  complete,  324. 
considerations  which  should  control  as  to  admission  of,  325. 


E. 
EJECTMENT. 

rule  as  to  judgment  in,  704. 

ENTRIES. 

In  General. 

admissibility  of  collateral  matters  in,  335-337,  339,  342-344. 

in  diary,  360. 

in  private  books,  331. 

death  of  entrant  as  prequisite,    336. 

to  refresh  recollection,  356.358. 

of  parties  against  interest,  335. 

See  also  Declaeations  of  Deceased  Peksons  against  Interest. 
Entries  made  in  course  of  business. 

admissibility  of,  generally,  377. 

rule  in  different  states,  379,   381. 

common  law  and  early  statute,  402. 

rule  is  in  state  of  transformation,  377. 

proof  of  and  manner  of  making  entries,  378,  379,  391. 

form  and  manner  of  keeping,  378,  379. 

effect  of  alterations,   etc.,    385,    397. 

when  should  be  made,  381,  384. 

right  to  charge  must  exist  at  time  of  delivery,   388. 

what  are  proper  subjects  of  book  charge,  384,  385,  387, 

of  what  things   they  are  not   evidence,   385. 

rule  when  better  evidence  exists,  380,  382,  398. 


'742  Index. 

ENTRIES — Continued. 

entries  made  in  course  of  business — Continued. 
memoranda  by  subordinates,  347. 
proof  of  agency  of   clerk  writing,   400. 
■when  clerk  deceased,  402. 
transcriptions    from   memoranda,    391. 
entries  in  bank  books,  when  admissible,  361. 
in  books  of  corporation  generally,  365. 
in  book  of  deceased  notary,  361. 
in  log-book  of  ship,  648. 

distinctions  between  rules  as  to  entries  made  by  persons  in  course 
of  business  and  as  to  declarations  of  deceased  persons,  342,  403. 
effect  of  agreement  of  parties,  390. 

ESCROW. 

to  show  writing  in,  84. 

ESTOPPELS. 

as  presumptions,   179. 

certainty  necessary,  180. 

mutuality  necessary,  180. 

upon  whom  bindings  180. 

of  municipal    corporation,    183. 

estoppel  against  estoppel,  effect  of;  how  may  be  made  available,  180. 

estoppels  in  pais,  equitable  estoppels,  179,  181. 

EVIDENCE. 

general  objects  of,  642. 

tendency  and  development  of  law  as  to  admission  of  regular  entries,  377. 

effect  of  illegality  in  obtaining,  7. 

prima  facie,  626-632. 

primary,  1. 

best  and  secondary,  see  Best  and  Secondaey  Evidence. 

for  subdivisions  of  evidence  see  those  titles. 

EXAMINED   COPIES,  34. 

EXECUTIONS. 

as  evidence,  686. 

EXECUTOR. 

admission  by,  529. 

EXEMPLIFIED  COPIES,  34. 

EXPERIMENTS, 
evidence  of,   11. 

EXTRA  WORK. 

under  contract,  evidence  of,  7. 


Index.  743 

F. 


y 


FAMILY  BIBLE. 

as  evidence  of  pedigree,  279. 

FERRY. 

hearsay  to  prove  right  of,  263. 

FIXTURES. 

parol   evidence    to   establish,   62. 

FOREIGN  CORPORATIONS. 
See  Corporations. 

FOREIGN  JUDGMENTS. 
See  Judgments. 

FOREIGN  STATUTES, 
judicial  notice  of    589. 
proof  of,  636. 

FRAUD. 

burden  of  proof  as  to,  614. 

presumption  against,  201,  240. 

effect  of  destruction  of  paper,  14. 

as  exception  to  parol  evidence  rule,  70,  71. 

as  to  writing  may  be  shown  by  parol,  84,  87,  106,  117. 

FRAUDS,  STATUTE  OF. 

burden  of   proof  as   to,  609. 

FRAUDULENT  CONVEYANCES. 

voluntary,  when  deemed  fraudulent,  241. 


G. 

GENERAL  OR  PUBLIC  RIGHTS. 
See  Public  Rights. 

GENERAL  ISSUE. 

effect  of  plea  of,  555. 

GIFT. 

will  not  be  presumed,  240. 

GEOGRAPHICAL  FACTS. 

judicial  notice  of,  583,  584,  589. 

GRANT. 

presumption  of  after  prescriptive  period,  177,  209,  215. 
proof  of  state  grants,  682. 


744  Index. 

GRAVESTONES. 

inscriptions  on  may  be  proved  by  parol,  9. 
inscriptions  on  as  evidence,  276. 

GUARANTY. 

parol  evidence  to  show  whether  it  is  continuing,  44. 

GUARDIAN. 

admission  by,  527. 


H. 

HEARSAY. 

.  general  rule,  251. 

what  is  hearsay,  252. 

exceptions  to  the  rule,  257. 

reputation  to  prove  that  one  holds  public  ofiBce,  9,  305. 

See,  also,  Reputation. 
General  or  public  rights,  259-269. 

admissible  to   prove  public  rights,   259. 

meaning  of  the  terms  "public"  and  "general,"  260. 

when  independent  proof  is  not  necessaiy,  262. 

application  of  the  exception,  262. 

instances  in  which  such  evidence  has  been  rejected,  266. 

must  be  ante  litem  motam,  268. 
Pedigree   and   relationship,   270-281. 

pedigree,  how  may  be  proved,  270. 

evidence  should  come  from  member  of  family  or  undoubted  source,  271. 

what  is  pedigree,  275. 

old  documents,  inscriptions,  etc.,  admissible  to  establish,  276. 

entries  in  family  Bibles  and  other  family  records,  279. 

declarations  of  deceased  persons,  280. 
Ancient   possessions,   282. 

hearsay  admissible  to  prove,  when,  282. 

hearsay  not  admissible  to  prove  private  title,  289. 

perambulations,  293. 

old  documents,  293. 

manorial  documents,  295. 

maps,  295. 

verdicts,  etc.,  297. 

judgments,  decrees  and  orders,  299. 

grounds  upon  which  these  rules  are  founded,  300. 

position  of  parties  presumed  to  be  as  stated  in  ancient  documents,  302. 

proof  of  modern  exercise  of  right,  303. 
To  establish   private   boundaries. 

admissibble..  when,  307. 

declarations  of  deceased  surveyors,  310. 

of  persons  shown  to  have  been  in  a  situation  to  know.  311. 


Index. 


745 


BBARSAY— Continued. 

when  hearsay  is  not  admissible,  313. 

declarations  of  owners  against  interest,  314. 
Dying  declarations. 

when  admissible,  320. 

to  what  matters  admissible,  324. 

declarations  must  be  complete,  324. 

considerations  which  should  control  as  to  admission  of,  325. 
Testimony  taken  in  former  trial,  457.  ,     .     ^ 

Declartions  by  Deceased  Persons  against  Interest,  Entries  made  in  Course 
of  Business,  and  Res  Gestae,  see  those  titles. 

HEIRS. 

bodily,  evidence  to  construe  as  "children,"  63. 

HISTORY. 

judicial  notice  of,  577,  584. 

HUSBAND  AND  WIFE, 
admissions  by,  499. 
presumption  of  coercion  of  wife,  240. 

presumption  where  husband  borrows  money  on  security  of  wife's  prop- 
erty, 248. 


I. 

IDENTITY. 

proof  of,  of  one  signing  writing,  42. 
presumption  from  identity  of  name,  206. 
judicial  notice  of,  599. 

ILLEGALITY. 

as  to  writing,  86-88. 

presumption  against,  200,  238. 

in  obtaining  evidence,  effect  of,  7. 

admissions  of  persons  acting  together  illegally,  496. 

IMMOVABLES. 
what  are,  9. 
best  evidence  of,  9. 
proof  of  inscriptions  on,  9. 

INCOMPLETE  CONTRACTS, 
parol  evidence  as  to,  64. 
writing  should  show  incompleteness  on  face,  68. 

INDEFINITENESS. 

parol  evidence  to  explain,  52,  54,  55. 


746  Index. 

INDEPENDENT  CONTRACT. 

independent  prior  and  contemporaneous  agreements  to  vary  writings,  64. 
independent  contract  entered  into  as  an  inducement  to  the  execution  of 
the  principal  contract,  parol  evidence  to  show,  108. 

INDORSEE. 

See  Negotiable  Instbuments. 

INFANT. 

presumed  to  be  under  control  of  parent,  240. 

effect  of  judgment  against,  696. 

when  infancy  may  be  shown  to  avoid  contract,  88. 

INNOCENCE. 

presumption  of,  239,  619. 

INSANITY. 

may  be  shown  to  avoid  contract,  when,  88. 
See  Sanity. 

INSOLVENCY. 

proof  of  by  hearsay  or  reputation,  253,  note  1. 

discharge  in  is  prima  facie  evidence  of  notice  to  creditors,  628. 

INSPECTION. 

production  of  writings  for,  31. 

INSPECTORS. 

certificate  of,  674. 

INSURANCE. 

burden   of   proof   in   action  on   policy,   622. 

statements  made  by  applicant  for  life  insurance  as  res  gestae,  413. 

INTENT. 

as  part  of  res  gestae,  413,  426,  434. 

INTENTION. 

proof  of  when  fact  in  issue,  48,  49. 
party's  direct  statements  of,  46. 

INTEREST. 

parol  evidence  to  show  intention  of  parties  as  to  payment  of,  110. 
declarations  of  owners  of  land  against  interest,   314. 
declarations  against;  see  Declarations  of  Deceased  Persons  against 
Interest. 

INTERLINEATION. 

See  Alterations  of  Instruments. 

INTERLOCUTORY  MATTERS. 

proof  of,  684. 


Index.  T4Y 


INTERPRETEE. 

proof  of  testimony  interpreted,   257. 

INTOXICATION. 

may  be  shown  to  avoid  contract,  when,  88. 

INVOICE. 

of  cargo  evidence  only  of  value,  630. 


J. 

JUDGMENTS  AND  DECREES. 
In  general. 

proof  of,  686. 

judgment,   parol    evidence   as   to,    115. 

presumption  of  regularity,  177. 

presumption  of  notice  of  suit  after  twenty  years,  177. 
Kinds  of. 

old,  when  admissible  to  establish  public  rights,  299. 

in  admiralty,  eflfect  of  as  proof  of  title,  629. 

rule  as  to  judgment  in  ejectment,  704. 

judgments  in  rem,  703. 

distinction   between    judgments    of    courts   of   exclusive  and   concur- 
rent  jurisdiction,    702. 

competency  of  evidence  of  acquittal,  084. 

validity  of  record  of  conviction,  690. 
Parties. 

between   what  parties   admissible,    692. 

when  the  parties  are  the  same,  but  not  suing  in  the  same  right,  705. 

rule  with  reference  to  real  and  nominal  parties,  704. 

proceedings    between   strangers,    704. 
Effect  of. 

effect   of    judgment,    700. 

to  prove  ancient  possessions,  297,   299. 

judgment  conclusive  of  fact  recorded;  collateral  and  direct  attack,  697. 

not  conclusive  on  immaterial  averments,  700. 

as  to  what  matters  a  judgment  concludes  a  party,  707. 
Foreign. 

proof  of,  690. 

effect  of,  711. 

attack  on,  718. 

parol   evidence   as  to,    115,   116. 

of  courts  of  limited  and  general  jurisdiction,  721. 

compliance  with  local  law  necessary,  720. 

of  different  states  in  Union.  727. 

source  of  judicial  authority  to  render  judgment  is  important,  723. 


Y48  Index. 

JUDICIAL  NOTICE. 
In  general,  571. 

how  court  may  inform  itself,  571,  597. 
What  noticed  judicially. 

abbreviations,    597,    598,    599. 

facts  in  almanac,  582. 

general  business  affairs^  587. 

calendar,  600. 

matters  of  common  knowledge,  587,   597. 

court  records,  585. 

currency,  customs,  history,  political  and  governmental  matters,  576. 

geographical  facts,  583,  584,  589. 

identity  of  name,  599. 

judicial   records,    595. 

language,  596,  597. 

location  of  places,  599. 

natural  laws,  589. 

notarial  certificates,  580. 

public  health,  588. 

religious  matters,  577,  578,  596. 

resources  of  state,  589. 

territorial  facts,  578,  582. 

miscellaneous  matters,  596. 
Lav>s  and  Statutes. 

public  and  private  statutes,  572. 

charters  of  corporations  are  private  acts,  575. 

charters  of  municipal  corporations  are  public  acts,  574,  575. 

of  laws  of  foreign  governments,  593,  595. 

of  acts  of  congress,  592,  593. 

statutes   and  common  law  of  other  states,  589. 

of  state  laws  by  federal  courts,  593. 

of    laws    of    territory    formerly    under    control    of    another   govern- 
ment, 592. 

pleading  of  statutes  relied  on,  600. 

JUDICIAL  RECORDS. 

presumption  as  to,   177. 
judicial  notice  of,  595. 
parol  evidence  to  vary,   114. 
must  be  complete  in  itself,  689. 
See  Judgments  and  Decrees. 

JUDICIAL  OFFICERS. 

certified   copies    by,   669. 

JURISDICTION. 

of  courts,  presumptions  as  to,  219,  247. 
See  Judgments  and  Decrees. 


Index.  T49 

K. 


KNOWLEDGE  OF  LAW. 
presumed,  177. 


LAND. 

See  Real  Estate. 

LAND  OFFICE  PAPERS, 
federal,  679. 
state,  681. 

LANDLORD  AND  TENANT. 

declarations  of  tenant   in   possession,  438. 

See  further.  Leases. 

LATENT  AMBIGUITIES. 

what  are,  rule  as  to^  38. 

created  by  proof  of  usage,  174. 
LEASES. 

parol  evidence  as  to,  123-132. 

terms  of  must  be  proved  by  lease  itself,  8. 

occupancy  of  tenant  under  may  be  proved  by  parol,  8. 

more  than  thirty  years  old  prove  themselves,  285,  note  11. 

proof  of  execution  of  ancient,  285,  note  11. 
LEGALITY. 

of  acts  presumed,  200. 
LEGISLATIVE  JOURNALS. 

parol  evidence  as  to,  117. 

proof  of,  634. 
LEGITIMACY. 

presumption  of,  177,  178. 

declarations  or  reputation  as  to,  281, 

LETTER. 

presumption  of  receipt  by  rail,  236. 

LETTER  BOOK 
as  evidence,  33, 

LIBEL. 

how  proved  when  written  on  wall,  10,  note  6. 

effect  of  presumption  of  good  character  on  action  for,  198. 

LICENSE. 

burden  on  one  having  license  to  set  it  up,  618. 

LIEN. 

burden   to  show   lien  discharged,   614. 


750  I:siDEX. 

LIFE. 

presumption  of  continuance  of,    186,   239. 

LIMITATIONS,  STATUTE   OF. 
burden  of  proof  as  to,  609. 
payment  presumed  by  lapse  of  time,  227-234. 

LIS  MOTA. 

declaration  as  to  public  right  must  be  ante  lis  mota,  268. 
declarations  as  to  pedigree  must  be  ante  lis  mota,  270. 

LOG  BOOK. 

of  sliip  as  evidence,  648. 

LOSS  OF  PAPERS, 
evidence  of^  13-15. 
loss  of  paper,  how  established,  16. 
loss  of  paper,  proper  search  for,  19. 

LOST  GRANT. 

presumption  of,  209-215. 

LOST  NOTE. 

See  Negotiable  Instruments. 


M. 

MAIL. 

presumption  of  delivery  of  letters  sent  by,  236, 

MANOR. 

proof  of  existence  of,  265. 

hearsay  as  to  manorial  customs,  262. 

manorial  documents,  295. 

MAP. 

to  prove  public  right,  263,  264. 
to  prove  ancient  possession,  284,  286,  295. 
incorporated  in  deed  by  reference,  112. 
competent  as  admission,  532. 

MARINE  PROTESTS  AND  SURVEYS,  672. 
MARKET. 

effect  of  usage  in  particular,  159. 

MARRIAGE. 

proof  of  by  parol,  8. 

by  cohabitation,  275. 

by  declarations  of  family,  275. 

marriage  certificate,  279. 

records  of  as  evidence,  640. 


Index.  '^^ 


MAXIMS. 

Omnia  praesumunter  recte  esse  ecta,  215  240. 
res  ipsa  loquitur,  197,  198. 

MEMORANDA. 

how  may  be  used  as  evidence,  345. 

may  be  used,  although  its  contents  M-ould  not  be  admissible,  355. 

memorandum  itself  only  admissible,  when,  S59. 

should  be  made  by  witness,  354. 

witness  need  not  have  recollection  independent  of,  355. 

memorandum  in  which  party  can  have  no  interest  to  falsify,  360. 

when  the  opposite  party  is  entitled  to  see  the  memorandum,  359. 

minutes  of  testimony  of  deceased  witnesses,  360. 

transcript  of  testimony  as,  356,  360. 

made  in  course  of  business,  347. 

use  of  memorandum  by  blind  person,  355. 

refreshing  recollection  from  copies,  349-353. 

refreshing  recollection  of  witness  by,  347-360. 

MENTAL  ANGUISH, 
evidence  of,  450. 

MINOR. 

See  Infant. 

MISTAKE. 

parol  evidence  as  to,  118. 

as  to  writings,  93,  106. 

clerical  error,  parol  evidence  to  prove,  118. 

as  to  signing  of  receipt,  78. 

mistaken  description  of  devisee,  parol  evidence  to  correct,  44. 

MORTGAGES. 

parol  evidence  as  to,  132,  133. 

MUNICIPAL  CORPORATIONS. 

charters  are  public  acts,  574,  575. 
estoppel  ofj  183. 


NAME. 

presumption  from  identity  of,  206. 

NEGATIVE. 

burden  to  prove,  616. 

NEGLIGENCE. 

not  presumed,  201. 

burden  of  proof  as  to  contributory,  609. 


752  Ikt>ex. 

KEGOTIABLE  IXSTRUMEXTS. 
In   General, 

alteration  of,  202,  205. 

parol  evidence  as  to,  118. 

parol  evidence  to  vary  liability  of,  83,  note  16, 

days  of  grace,  usage  as  to,  170,  171. 
Admissions. 

of  parties  to  in  general,  487. 

by  an  indorser,  491. 

by  a  former  owner  of  a  not«,  492. 

by  one  party  as  binding  on  another  party  to  instrument,  535. 

indorsement  of  payment  as  admission,  468. 
Lost  note. 

contents  may  be  proved  by  parol  wben,  13-15. 

accidentally  destroyed,  13. 

voluntarily  destroyed,  14. 

fraudulently   destroyed,   14. 

how  loss  established,   14. 

burden  of  proof  as  to,  620. 

rule  when  former  existence  is  admitted,  620. 

NOMINAL  PARTY. 

See  Paeties. 

NOTARY. 

entries  in  book  of,  361. 
certificates  of,  670. 

NOTE. 

See  Negotiable  Instbuments. 

NOTICE. 

proof  of  service  and  contents'  of,  8. 

presumption  of  notice  of  suit  after  twenty  years.  177. 

Notice  to  produce, 

when  unnecessary,  27. 

effect  of,  29. 

requisites  of  notice  to  produce  paper  in  possession   of  the  adverse 
party,  24. 

necessity  of  proof  of  possession  of  instrument,  31,  32. 


OFPICE  COPIES,  34. 

OFFICERS. 

regularity  of  appointment  of  de  facto  oflBcers  presumed,  221-226. 
general  reputation  to  prove  that  one  holds  public  office,  9,  3  Of' 
parol  proof  of  official  character  of,  9. 


Index.  753 


i 


OYFICEHS— Continued. 

parol  evidence  of  oflScial  character  of  signature,  43. 

acts  presumed  valid,  215-219. 

certificates  of,  G55. 

certificates  of  foreign  officers^  G64. 

return  of  as  evidence  in  his  favor,  465,  466,  467,  468. 

entries  of  not  admissible  as  to  collateral  matters,  343, 

judicial  notice  of  notarial  certificates,  580. 

OFFICIAL. 

acts,  presumption  of  validity  of,  215. 
certificates,  655. 

records,  parol  evidence  to  vary,  116. 
sales,  presumption  of  regularity,  226. 

OLD  DOCUMENTS. 

See  Ancient  Documents. 

OPINION  EVIDENCE, 
to  prove  usage,  137. 


PAROL  EVIDENCE  AS  TO  WRITINGS. 

general  rule,  37. 

latent  ambiguities,  what  are,  rule  as  to,  38. 

to  correct  mistaken  description   of  devisee,  44.     > 

party's  direct  statements  of  intention,  46. 

to  apply  description  to  real  estate,  49. 

patent  ambiguity  or  indefiniteness,  52. 

conduct  of  parties  at  the  time  of  and  after  the  execution  of  a  writing,  55. 

to  explain  or  vary  legal  effect  of  unambiguous  writing,  59. 

prior  and  contemporaneous  independent  agreements,  incomplete  contracts, 
64. 

receipts,  releases  and  tickets,  75. 

surrounding  circumstances,  79. 

to  prove  collateral  matters,  81. 

to  show  that  writing  never  legally  existed,  (fraud,  illegality,  escrow,  etc.) 
84. 

consideration,  90. 

mistake,  93.  ) 

waiver,  alteration  or  discharge  of  contract,  98. 

to  show  warranty,  100. 

to  show  that  writing  apparently  absolute  is  a  security  or  trust  instru- 
ment, 104. 

agency  or  signature  in  representative  capacity,  107. 

when  an  independent  contract  is  entered  into  as  an  inducement  to  the 
execution  of  the  principal  contract,  108. 


T54  Index. 

PAROL  EVIDENCE  AS  TO  WRITINGS— Continued. 

several  writings  may  be  looked  at  to  determine  the  real  contract  and  in- 
tention of  the  parties,  109. 
as  to  third  parties,  112. 
judicial,  corporate  and  official  records,  114. 
assignments,  117. 
negotiable  instruments,  118. 
bills  of  lading,  120. 
bills  of  sale,  121. 
leases,  deeds  and  mortgages,  123. 
execution  of  writing,  parol  evidence  as  to,  87. 
to  identify  and  apply  subject  matter  of  contract,  41. 
fraud,  70. 
Custom  or  usage,  133. 

parol  evidence  of  usage,  admissible  when,  133. 

qualities  and  proof  of  binding  usage,  135. 

need  not  necessarily  be  general,  140. 

must  be  established  by  instance  of  its  application,  144. 

general  usage,  how  established.     By  one  witness,  137,  145. 

mere  conflict  of  evidence  as  to,  does  not  defeat,  149. 

effect  of  local  or  trade  usage,  151. 

usage  in  particular  market,  159. 

usage  must  be  reasonable  and  legal,  160. 

usage  as  a  means  for  ascertaining  the  meaning  of  words  and  phrases, 
163. 

rule  when  words  have  well  defined  meaning,  167. 

usage  may  add  incidents  to  contracts.     Illustrations,  170. 

usage  as  to  days  of  grace  on  negotiable  instruments,  170,  171. 

rule  when  ambiguity  is  created  by  parol  proof,  174. 

PAROCHIAL  RIGHTS. 

hearsay  to  establish,  262. 

PARTNERSHIP. 

proved  by  parol,  9,  254. 

PARTIES. 

effect  of  admission  by  nominal,  487,  527. 

judgment  binding  on  parties  and  privies,  692. 

judgment  as  to  nominal  parties,  704. 

judgment,  effect  of,  when  parties  are  same  but  not  suing  in  same  right, 

705. 
patent  ambiguity  or  indefiniteness,  52. 

PATENTS.  ^ 

for  inventions,  649. 
for  lands,  649. 


Index.  755 

PAYMENTS. 

proved  by  parol,  7,  8. 

presumption  after  lapse  of  time,  227-234. 

PEDIGREE. 

what  is  pedigree,  275. 

place  of  birth  not,  280. 
age  is  not  necessarily,  276. 
of  an  animal,  276. 
how  may  be  proved,  270. 

evidence  should  come  from  member  of  family  or  undoubted  source, 

271. 
entries  in  family  bibles  and  other  family  records,  279. 
church  registers  and  other  records  as  evidence  of,  640-645. 
entry  in  almanac  to  prove,  278. 
declarations  of  deceased  persons,  280. 
presumption  of  legitimacy,  177,  178. 

old  documents,  inscriptions,  etc.,  admissible  to  establisl.,  276. 
reputation  as  evidence  of,  270,  281. 

PERAMBULATIONS,  293. 

PHOTOGRAPHS,  10. 
X-ray,  11. 

PLEADINGS. 

who  is  to  begin,  621. 

in  action  to  recover  lands,  624. 

right  to  reply,  625. 

as  admission,  552,  553. 

new  assignment,  560. 

omitting  to  traverse,  560. 

effect  of  plea  of  general  issue,  etc.,  555. 

POLICY  OF  LAW. 

presumption  originating  in,  248. 

POST. 

presumption  of  receipt  of  letter  sent  by,  236. 

POSSESSION. 

of  property,  presumption  from,  208,  234,  238,  244,  627. 

PRACTICE. 

who  is  to  begin,  621. 

in  action  to  recover  lands,  624. 

right  to  reply,  625.  '  ;'*- 

PRAYER  BOOK. 

entry  in,  to  show  pedigree,  278. 


756  Index. 

PRESUMPTIONS. 

In  general,  kinds  of,  175. 

conclusive  presumptions,  what  are,  176. 
conclusive,  as  to  payment  after  twenty  years,  229-234. 
disputable  presumptions  of  law,  183. 
of  law  and  fact,   175. 
presumption  upon  presumption,   176. 
contradictory,  176. 

presumption  and  proof  distinguished,  250. 
founded  on  policy  of,  248. 
estoppels  as  presumptions,  179. 
upon  whom  binding,  180. 

estoppel  against  estoppel,  effect  of;  how  may  be  made  available,  180. 
estoppels  in  pais.     Equitable  estoppels,   181. 
To  what  presumptions  may  relate. 
abandonment,  207. 

acceptance  of  advantageous  matter,  243,  note  68. 
accounts,  194. 
position  of   parties  presumed  to  be  as   stated  in  ancient  documents, 

302. 
adverse  possession;  presumption  of  lost  grant,  209-215. 
agency,  195. 

alteration  of  instruments,  202. 
carriers,  negligence,  etc.,  196. 
character,  198,  239. 
common  experience,  239,  245. 
as  to  conspiracy,  242. 
continuance  of  fact,  184,  239. 

continuance  of  life;  effect  of  seven  years'  absence,  186,  239. 
damages,  206. 

fraud,  undue  influence  or  illegality,  199,  240. 
of  coercion  of  wife  by  husband,  240. 

■where  husband  borrows  money  as  security  of  wife's  property,  248. 
identity  of  name,  206. 
innocence,  239,  619. 

that  everyone  acts  for  his  own  interest,  240,  242. 
jurisdiction  of  courts,  219,  247. 
validity  of  official  acts,  215. 
regularity  of  appointment  of  officers,  221-226. 
official  sales.  226. 
payment,  227-234. 

title  to  property  presumed  from  possession,  234. 

presumption  arising  from  possession  of  real  estate,  208,  234,  238,  244. 
acquiescence  of  claimant  leading  to  presumption  of  title  in  possessor, 

243,  note  68. 
sanity  and  suicide,  192,  239. 
ships  not  heard  from,  194. 


Index.  757 

TILESTJMFTIO^S— Continued. 

silence,  presumption  arising  from  silence  of  one  on  whom  is  cast  bur- 
den of  explanation,  238. 
survivorship  in  common  disaster,  190. 
from  withholding  testimony,  238. 
miscellaneous  presumption,  236. 

PRIMA  FACIE  EVIDENCE. 

general  rule,  illustrations,  626. 
as  to  receipts,  signatures,  etc.,  631. 

PEIMARY  EVIDENCE, 
what  iSj  1. 
See,  also.  Best  and  Secondary  Evidence. 

PRINCIPAL  AND  SURETY. 

admission  by  principal  not  aflFect  surety,  536. 

PRIVIES. 

rule  applicable  in  cases  of  personalty,  533. 

who  are,  692. 

bound  by  judgment,  693,  694. 

admission  by,  530. 

PROMISSORY  NOTE. 

See  Negotiable  Instruments. 

PROOF. 

distinguished  from  presumption,  250. 

PUBLIC  DOCUMENTS, 
in  general,  633. 
proof  of,  by  copy,  9,  10. 
legislative  journals,  634. 
statutes,  636. 

common  law  of  another  State  or  country,  640. 
records  of  births,  marriages  and  deaths,  640. 
ship  registers,  645. 
patents  for  inventions,  649. 
patents  for  lands,  649. 
copies,  651. 

oflBcial  certificates,  655. 
certificates  by  executive  officers,  666. 
certificates  by  clerks,  668. 
certificates  by  judicial  officers,  669. 
notarial  certificates,  670. 
marine  protests  and  surveys,  672. 
consular  certificates,  673. 

certificates  by  appraisers,  inspectors,  etc.,  674. 
United  States  departmental  records,  678. 


758  liS^DEX. 

PUBLIC  DOCUMENTS— Con fi«4terf. 
weather  reports,  670. 
surveys  of  land,  G76. 
certificates  by  land  officers^,  675. 
land  office  papers  and  records,  679. 
custom  house  records,  681. 
State  land  office  papers,  681. 
State  grants,  682. 
State  records,  683. 

verdicts  and  interlocutory  matters,  684. 
judgments. 

proof  of,  686. 

proof  of  foreign  judgments,  690. 

between  what  parties  admissible,  692, 

judgment  conclusive  of  fact  recorded,  collateral   and  direct  attack, 
697. 

not  conclusive  on  immaterial  averments,  700. 

effect  of  judgment,  700. 

distinction  between  judgments  of  courts  of  exclusive  and  concurrent 
jurisdiction,  702. 

judgments  in  rem,  703. 

proceedings  between  strangers,  704. 

rule  with  reference  to  real  and  nominal  parties,  704. 

rule  as  to  judgment  in  ejectment,  704. 

when  the  parties  are  the  same,  but  not  suing  in  the  same  right,  705. 

as  to  what  matters  a  judgment  concludes  a  party,  707. 

effect  of  foreign  judgments,  711. 

attack  on  foreign  judgments,  718. 

PUBLIC  OFFICER. 
See  Officer. 

PUBLIC  RIGHTS. 

"  public  "  and  "  general  "   defined,  260. 
Hearsay  as  to, 

admissible  to  prove  public  rights,  259. 

when  independent  proof  is  not  necessary,  262, 

application  of  the  exception,  262. 

instances  in  which  hearsay  as  to,  has  been  rejected,  266. 

must  be  ante  litem  motam,  268. 

reputation  as  evidence  of,  266-268. 

PUNCTUATION. 

writing  deficient  in  punctviation  may  be  explained  by  parol,  43,  note  29. 


Index. 
Q. 


759 


QUARANTINE. 

proof  of,  8. 

QUI  TAM. 

burden  of  proof  in  action  of,  619,  note. 

E. 

^^^resumption  of  lack  of  capacity  in  certain  infants,  178. 

REAL  ESTATE.  ,      ^o    ip-^ 

parol  evidence  to  apply  description  to,  49,  1^^. 
presumption  from  possession  of,  208,  234,  238,  -44 
contract  for  sale  of,  cannot  be  added  to  by  parol,  .0,  note,  72,  note, 
fraud  in  sale  of,  may  be  shown  by  parol,  71,  note, 
declarations  as  to  title  and  possession  of,  435. 

RECEIPTS. 

parol  evidence  to  vary^  75. 
effect  of,  as  estoppel,  121. 
as  prima  fade  evidence,  631. 

RECORDS. 

as  primary  evidence,  6. 

parol  evidence  of  results  of  search  in,  16. 

of  births,  marriages  and  deaths,  as  evidence,  640. 

judicial,  corporate  and  official,  parol  evidence  to  vary,  114. 

judicial  notice  of  court  records,  585. 

State,  683. 

See  Public  Docxjments. 

REFORMATION, 
of  writing,  97. 

REFRESHING  RECOLLECTION. 

of  witness  by  memoranda,  347-360. 
See,  further.  Witness. 

RELEASE. 

evidence  of,  78. 

parol  evidence  to  vary,  78. 

RELIGIOUS  SOCIETY, 
books  of  J  375. 
judicial  notice  of  existence  and  rites  of,  577,  578. 

REPORTS. 

on  loose  sheets  copied  in  book  kept  as  record,  3. 


760  i.\DEX. 

REPUTATION. 

competency  of  evidence  of,  254,  255. 

to  prove  historical  facts,  267. 

to  prove  that  one  holds  publis  office,  305. 

of  custom  of  manor,  304. 

as  evidence  of  existence  of  manor,  265,  266. 

to  prove  pedigree,  270,  281. 

inadmissible  to  prove  private  title,  290. 

as  evidence  of  public  right,  266-268. 

inadmissiDle  as  to  usage,  290. 

EES  GESTAE. 
In  General. 

what  is  general  rule,  404. 

spontaneity  of  the  acts  and  declarations  essential,  what  is,  440. 
locality  of  declaration^  451. 
statements  made  before  the  principal  fact,  413. 
acts  and  statements  after  the  principal  fact,  448. 
collateral  'matters  connected  with  principal   fact,   420,  422. 
what  is, 

statements  of  agents,  429. 

declarations   of   conspirators,  when  evidence   against   co-conspirator3 

452. 
statements  of  conspirators,  when  not  part  of  the  res  gestae,  455. 
writings  in  possession  of  conspirators  before  cr  after  apprehension, 

455. 
as  to  dying  declarations,  322. 

attendant  exclamations  and  actions  of  others.  423,  432. 
statements  made  by  applicant  for  life  insurance,  413. 
intent,  413,  426,  434. 

declarations  as  to  title  and  possession  of  lands,  316,  435. 
personal  habits  of  party,  429. 
personal  injuries  and  their  cause,  407. 
statements  to  attending  physicians,  411,  431. 
self-serving  statements  admissible  only  as  res  gestae,  460,  468.  - 
statement  of  principal  affecting  surety,  430. 
self-serving  declarations,  428. 
suggestion  to  third  party  not,  58.     ■ 

RES  IPSA  LOQUITUR,  197,  198. 

RES  JUDICATA,  700,  701. 


Index.  761 

S. 


SANITY. 

presumption  as  to,  192,  239. 


SALES. 

official  presumed  regular,  226. 

parol  evidence  to  vary  bill  of  sale,  121. 

SEALED  INSTRUMENTS, 
evidence  to  avoid,  88. 

SEARCH. 

for  lost  paper,  sufficiency  of,  19. 

SECONDARY  EVIDENCE, 
degrees  in,  32,  34. 

not  admissible  in  place  of  writing,  5. 
See  Best  and  Secondaey  Evidence. 

SECURITY. 

parol  evidence  to  show  that  writing  apparently  absolute  is,  104. 

SELF-SERVING  DECLARATIONS,  255,  256,  460-470. 
by  owner  of  land,  317. 
as  part  of  re&  gestae,  428. 

SERVICE. 

of  notice  to  produce  papers,  25. 

SHERIFF. 

See  PxjBLic  Officer. 

SHIP. 

registers,  645. 

presumption  as  to  ships  not  heard  from,  194. 

SHOP  BOOKS. 

See  Entries  Made  in  Course  of  Business. 

SIGNATURE. 

parol  evidence  to  show  signature  in  representative  capacity,  107. 

SILENCE. 

presumption  arising  from  silence  of  one  on  whom  is  cast  burden  of  ex- 
planation, 238. 
admission  implied  from,  545. 
conversation  distinguished  from  letters,  547. 

SLEEP. 

words  spoken  in,  not  evidence,  256. 


762  Index. 

SPOLIATION  OF  INSTRUMENTS,  206. 

as  to  notice  to  produce  paper  fraudulently  obtained  by  spoliator,  28. 
See  Altekation  of  Instruments. 

STATE  GRANTS, 
proof  of,  682. 

STATE  LAND  OFFICE  PAPERS, 
proof  of,  681. 

STATE  RECORDS, 
proof  of,  683. 

STATUTES. 

proof  of,  636. 

effect  of  preamble,  638. 

distinction  between  public  and  private,  574. 

charters  of  municipal  corporations  are  public  acts,  574,  575. 

charters  of  corporations  are  private  acts,  575. 

proof  of  private  acts,  639. 

judicial  notice  of,  572. 

judicial  notice  of  statutes  of  other  States,  589. 

presumed  constitutionally  passed,  594. 

pleading  of,  600. 

STATUTE  OF  FRAUDS. 

burden  of  proof  as  to,  609. 

STOCK  OF  GOODS. 

proof  of  amount  ofj  6. 

STOCK  MARKET. 

effect  of  usage  of,  159. 

STOCKHOLDER. 

books  of  corporation  as  evidence  that  one  is  stockholder,  366. 

STRANGERS. 

parol  evidence  to  vary  contracts  between,  112. 

SUICIDE. 

presumption  as  to,  193. 

SURETY. 

statement  of  principal  as  evidence  against,  430. 

admissibility  as  against  surety  of  declarations  of  principal,  332. 

effect  of  judgment  against  principal,  696. 

SURROUNDING  CIRCUMSTANCES, 
to  explain  writing,  56,  57,  79. 


Index.  T63 


SURVEY  AND  SURVEYOR. 

Survey. 

proof  of,  676. 

competent  as  admission,  532. 
Survegors. 

declarations  of,  to  establish  private  boundary,  310. 

books  of  deceased,  382. 

admissibility  of  report  of,  650,  665. 

SURVIVORSHIP. 

in  common  disaster,  presumption  as  to,  190. 


TECHNICAL  WORDS, 
usage  to  explain^  163. 

TELEGRAM. 

primary  evidence  of,  2. 
presumption  of  receipt  of,  236. 

TELEPHONE. 

proof  of  conversation  over,  257. 

TENANCY. 

proof  of,  by  parol,  8. 

TERRITORY. 

judicial  notice  of  boundaries  of,  578,  582. 

TESTIMONY. 

taken  in  former  trial  as  evidence^  457. 

THIRD  PARTIES. 

parol  evidence  to  vary  contract  betwe^i^  112. 

TICKET. 

nature  of,  78,  79. 
parol  evidence  as  to,  78. 
effect  of  possession  of,  81. 

TIME  TABLE. 

of  railroad  not  exclusive  evidence,  9. 

TITLE. 

by  deed  proved  by  deed,  3. 

declarations  as  to  title  and  possession  of  lands,  435. 

presumption  in  favor  of  holder  of,  209,  234. 

TOMBSTONES. 

inscriptions  on,  may  be  proved  by  parol,  9. 
inscriptions  on,  to  prove  pedigree,  276. 


764:  Index. 

TRADITION. 

See  Reputation. 

TRANSCRIPT  OF  TESTIMONY, 
as  memorandum,  356,  360. 

TRUST. 

parol  evidence  to  show  that  writing  apparently  absolute  is  a  trust  instru- 
ment,  104,  132. 
trustee  presumed  to  act  legally,  201. 
admissions  by  trustee,  527. 

U. 
UNAMBIGUOUS  WRITING. 

parol  evidence  to  explain  or  vary  legal  effect  of,  59. 

UNDUE  INFLUENCE. 

presumption  against,  199. 

UNITED  STATES  DEPARTMENTAL  RECORDS,  678, 

USAGE. 

See  Custom. 

V. 

VENDOR  AND  PURCHASER. 

contract  for  sale  of  land  cannot  be  added  to  by  parol,  70,  note,  72,  note, 
fraud  in  sale  of  land  may  be  shown  by  parol,  71,  note. 

VERBAL  FACTS, 
proof  of,  4. 

VERDICTS. 

to  prove  ancient  rights,  297. 

verdicts  and  interlocutory  matters,  proof  of,  684. 


w. 


WAIVER. 

of  contract,  98. 

WARRANTY. 

parol  evidence  to  show,  100. 

WEATHER  RECORDS, 
official,  679. 
kept  at  insane  asylum,  360. 

WIFE. 

See  Husband  and  Wife. 


Index.  YG5 

WITNESS. 

minutes  of  testimony  of  deceased  witnesses,  360. 
Refreshing  recollection  of  btf  memoranda,  347-360. 

use  of  copies,  349-353. 

memoranda  should  be  made  by  witness,  354. 

may  be  used,  although  its  contents  would  not  be  admissible,  355. 

witness  need  not  have  recollection  independent  of,  355. 

when  the  opposite  party  is  entitled  to  see  the  memorandum,  359. 

memorandum  itself  only  admissible,  when,  359. 

WILL. 

direct  statements  of  intention  of  testator,  46,  48. 

parol    evidence   as    to   construction    of.        See    Pabol   Lvidence    as    to 
Weitings. 

WORDS. 

"  after  arrival,"  166. 

"  at  the  gate,"  169. 

"all  faults,"  165. 

"barrel,"  134,  168. 

"  British  weight,"  166. 

"building,"  164. 

"  cash  sale,"  152. 

"  coppered  ship,"  166. 

"  currency,"  158.  \ 

"  current  money  of  Philadelphia,"  157. 

"  damages  of  the  river,"  158. 

"days,"  164,  165. 

"  day's  work,"  158. 

"  deepen  a  ditch,"  158. 

"E.=  N.  W.*"  166. 

"  F.  C,"  166. 

"form,"  158. 

"freight,"  164. 

"  full  and  complete  cargo  of  sugar,"  167. 

"fur,"  164. 

"  good  custom  cowhide  boots/'  158. 

"  good  merchantable  shipping  hay,"  158. 

"  grain,"  164. 

"  homestead  farm,"  158. 

"  immediate  delivery,"  166. 

"  in  turn  to  deliver,"  167. 

"  inhabitant,"   164. 

"  legal  representatives,"  63. 

"level,"  164. 

"  line  via.  Harlem  River,"   159. 

"  mess  pork,"  164. 


766  Index. 

WOKD  S — Continued. 

"mineral  and  ores,"  166. 

"  more  or  less/'  157. 

"  net  receipts,"  140. 

"noon,"  165. 

"  on  margin,"  158. 

"petroleum  oil  or  gas,"  170. 

"  prime  singed  bacon,"  142. 

"  privilege,"  164. 

"roots,"  164. 

"sea  litter,"  166. 

"  six  per  cent,  off  for  cash,"  136. 

"  square  3,000  pine  saw  logs,"  165. 

"  store  fixtures,"  166. 

"team,"  158. 

"thousand,"  162,  164. 

"ton,"  161. 

"  usage  of  trade,"  141. 

"  usual  and  customary  method  of  engaging  and  paying  fishing  crew,"  158. 

"weeks,"  164. 

"wholesale  prices,"  112. 

WRITINGS. 

prerequisites  to  secondary  evidence  of,  13-15. 
parol  evidence  as  to.     See  Pabol  Evidence. 


X-RAY  PHOTOGRAPHS, 
proof  of,  11. 


LAW  LIBRARY 

ItNlVEKSlTY  OF  CATJFORNU 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    000  834  2 


7    2 


